3 Common Probate Questions: Estate Planning for Beginners

When people pass away, they leave behind assets, property, and possessions that can have sentimental and real value for surviving family members and loved ones. An estate is everything an individual owns upon their death.

According to Estate Exec, the average size of an estate is between $50,000 and $250,000. Eleven percent of estates are under $11,000, while 11 percent are over $1,000,000. Some assets transfer directly from descendants to heirs after a person’s death. These non-probate assets include pay-on-death bank accounts, insurance policies with designated beneficiaries, trust funds, and jointly held assets with survivorship rights. Other assets must go through a process known as probate.

What Is Probate?

Probate is a legal process in which the court oversees the administration of the estate. The process involves validating the person’s will, satisfying their debts, and distributing their assets to beneficiaries. If there is no will, heirs under state intestacy laws receive the estate.

Assets subject to probate include property, bank accounts, investments, and personal belongings.

Typically, the estate representative initiates the process. If there is a will, the will should name an executor, sometimes referred to as a personal representative, responsible for distributing the assets.

Yet many people die without a will. Per a study by Caring.com, only one third of Americans have an estate plan.

When an individual passes away without a will, an interested party may initiate probate. Spouses, adult children, other relatives, and creditors may petition the court to open the estate.

Should the estate representative fail to open probate on time, an interested party may petition the court.

For those who have not encountered estate administration in the past, the process can be an unfamiliar concept. Here are answers to three commonly asked questions about the probate process:

1. How Long Do You Have to File Probate After Death?

How long the estate representative or interested party has to open probate depends on the jurisdiction. Each state has its specific laws and regulations about the timeframe for initiating the process.

In Florida, the original will must be filed with the probate court within 10 days of the death. If there is no will, it is recommended to file with the probate court as soon as possible. Generally, for simple estates the timeline can be expected to last up to 3 months. For more formal administration and complex estates, it can take up to 2 years.

Since probate can take months to years, it is best to initiate it as soon as possible after the person’s death.

2. How Long Do You Have to Transfer Property After Death?

After a property owner’s death, the ownership of the property must transfer to another party.

In certain circumstances, a person’s house or other assets may not have to go through probate. If the property is owned as joint tenants or tenants by the entirety, the surviving owner retains ownership. Transfer on death deeds or transfer on death instruments and living trusts also allow individuals to pass property directly to beneficiaries outside of probate.

Property owned individually or as tenants in common becomes subject to probate. When the property is subject to probate, how long you have before you must transfer it depends on the rules and regulations of your state. Once the property becomes part of the probate estate, the court determines who receives the property based on a valid will or state intestacy laws. The court may require the sale of the property to satisfy debts or distribute money to beneficiaries.

3. What Is a Petition for Discharge in the Probate Process?

A petition for discharge is an essential step in the probate process that allows beneficiaries and heirs to obtain assets from the person who has passed away. The executor files the petition to request the court’s approval to distribute the assets and close the estate.

The petition specifies how the beneficiaries will receive the assets. It also discloses how much money the personal representative receives for services rendered and the attorney’s payment.

After the court approves the request, the executor can distribute the assets to the beneficiaries.