Probate is something that you’ve probably heard of, and you may have even heard some horror stories of how difficult it can be to go through it after a loved one passes away. Today we’re going to answer a few of the common probate questions.
- What is probate?
- How does probate work?
- Do you have to go through probate when someone dies?
- Who handles the probate process?
- Who can i sell property to that is left after probate?
What is probate?
Probate is the name of the legal process that happens after someone dies. It normally includes:
- proving that the deceased person’s will is valid to the court
- determining and inventorying the property of the deceased person
- appraising the deceased person’s property
- paying any debts and taxes
- distributing the remaining property per the terms of the will, or (depending on the state) if no will exists, then having the state take the property
Probate can seem scary, but it is just a lot of paperwork and court appearances by lawyers—the fees the lawyers and court charge are paid from the estate itself. Typically, if there were a will, then these monies would otherwise go to the inheritors. Because the money (and property) doesn’t right away, there’s usually less left over after probate is complete.
How does probate work?
Here’s the normal process for probate:
- After you pass away, the executor of your will (the person you named in your will as responsible for overseeing its execution, or if you didn’t have a will then the person appointed by a judge) begins the process by filing paperwork with your local probate court.
- The executor must prove the validity of your will (essentially that you created it in a right mind, and weren’t coerced or forced to write it), and then presents the court with an inventory of your property, your debts, and who should inherit what you’ve left behind.
- After that is completed, your relatives and creditors (people you owe money to) are given the official notification of your death.
- Next, your executor must find and secure your assets during the length of the probate process. This process can take as little as a few months and up to a year.
Depending on how your will was written and how large your debts are, the executor of the will may have to make a few decisions like:
- Should the estate’s real estate be sold?
- Should securities (stocks, bonds, etc.) be sold to generate cash?
- Should other assets be sold, or held and passed on to the heirs as is?
For example, if your will stated that a certain piece of furniture should be passed down to your grandson, then the executor would probably try to not sell that item. Why? Because you explicitly named the item as part of your estate, rather than its cash value. While we aren’t lawyers, and nothing written here should be taken as legal advice, we would strongly recommend working with a qualified estate planning attorney to make sure your wishes are properly documented in your will.
What if probate is dragging on, and your heirs want some money now? In most states immediate family members (your children, for instance) can ask that the court release short-term support money while the probate process slowly moves along. Once the process is done, the executor will be granted permission by the court to pay debts and settle the final distributions to whoever is named.
Do I have to go through probate when someone dies?
The short answer is no, you do not. Most states have a limit to the value of property that can pass “free of probate” or through a simplified probate process. It depends on the state, so we recommend checking with an estate planning attorney on the specifics for the state you’re concerned about. Also, if there is a surviving spouse, then, again depending on state, there is usually.a simple transfer procedure available. (If you’re wondering how does probate work for your state – click here) Its also important to note that property that is either joint tenancy or held in a living trust is not subject to probate.
Who handles probate?
In the majority of situations the executor named in the will handles the probate process. If there isn’t a will, or if the will doesn’t name an executor (which would be very rare), then the probate court will assign an administrator to handle the process. Often this will be the closest capable relative or the person set to inherit the majority of the estate. If there isn’t a need for a formal probate proceeding, then the court will not appoint an administrator to the estate. In these situations a friend or relative will act as an informal administrator. The family or friends of the deceased will choose this person, and its not uncommon for multiple people to take on the responsibility of settling the estate, paying debts, selling off real estate, and filing a final income tax return.
Who can I sell real estate to after probate is finished?
If there is real estate (the home of the deceased person, for example) that is part of the estate, then this will need to be handled according to one (or a combination of) the following:
How real estate can be handled in probate:
- The intent of the decedent (as outlined in the will)
- The actions demanded by the probate process (it may need to be sold to satisfy outstanding debts)
- The wishes of the family or other heirs (if it was not sold as part of the settling of the estate)
Here’s the bad part – handling an estate’s real estate can create undo stress for the family.
Why? It could be any of a number of reasons – the property is located far away from the rest of the family, it needs repairs and updating before it can be sold on the open market, or the remaining family may be too busy to handle it. Of course, this isn’t always the case, but when it is a company like Simply can help. We’re experienced in the probate process, and we can help guide you through the sale of the home (or other property). We regularly buy homes that are in, or coming out of probate, and will offer a fair cash price for the property “As Is”. This means that we will buy the property in its current state, with no expectation of repairs or updates being made.
Why does selling a house that is part of an estate to Simply make sense?
- We will buy the property “as is” – no repairs or updates required
- We will provide a fair cash offer for the property, and pay all fees and closing costs
- You will not have to go through the long process of updating or repairing the property, or going through showings and open houses
- We can close in as little as 10 days if needed
- We can do virtual closings, with everything handled online (this is great if you don’t live near the property itself)!