Probate isn’t just for when someone passes without a will. If you’ve been named a beneficiary or executor for an estate, you need to know what happens in probate court. You’ll also need this information if you’re aiming to be named the administrator of an estate.
Not being educated about probate is one of the most common mistakes people make with this process. Being informed and choosing the right probate lawyer are two things that can make your experience a smoother one. Here are seven facts about what happens in probate court to help you along the way:
- There is no standard length of time for the probate process. Many cases last around nine months to a year. Probate can take much longer or go by faster. There are a lot of factors that influence how long probate takes, including the complexity of the estate itself. Mistakes and oversights can lengthen the process. To keep the probate process as brief as possible, be sure to get the right lawyer.
- Probate laws vary from one state to the next. It starts in the state where the deceased resided. It can happen that the probate process for a single estate has to take place in multiple states. An example is when the person who passes leaves behind real estate that’s in a different state than the state of their residence.
- If there are any creditors, they may place claims for outstanding debt during the probate process. Creditors get paid before beneficiaries. Claims found valid must be paid from the estate – this is why it’s never a good idea to distribute assets to beneficiaries too soon. Estate executors who neglect to consider creditors when distributing assets could be held personally liable for the debt.
- Where there is no will, the probate court appoints an administrator. It is possible to petition to be an administrator, but know that state law defines who may be an administrator. In Tennessee, the spouse of the deceased is given priority, then the children who are over 18 years old. Each may decline to serve, but they have to do it in writing.
- Some assets are exempt from probate. Where a beneficiary is named on these assets, that person may secure ownership of the asset without regard to the probate process. Examples of such assets include insurance policies and retirement accounts.
- Even if real estate is involved in the probate process, that property can be sold before the process is completed. The seller, however, must have the legal authority to sell the property – this is usually the executor. In fact, waiting too long to put real estate up for sale during probate is a common mistake, as doing so can help settle the estate faster. But keep in mind that the executor may not sell real estate belonging to the estate before the probate process begins.
- Estate planning can help shorten or avoid the probate process. Living trusts are especially helpful. If you are the beneficiary of an estate and are witnessing first-hand the complexity of the probate process, you may want to consider estate planning for your own assets.
Whether facing a probate process or pondering the future of your estate, get the legal assistance you need by giving Preston Wilson a call.
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