Getting to know probate

Getting to Know Probate

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Getting to Know Probate

You can minimize or avoid probate entirely by getting to know probate and working with an estate planning attorney. Probate proceedings are part of the public record and can be very time-consuming and expensive. However, in nearly every case, some probate is necessary, so it is important to understand how to navigate the process.

Probate proceedings seek to validate the decedent’s last will and retitle the estate’s assets into the name of heirs according to the deceased’s wishes. These court-supervised proceedings ensure estate debts are paid and oversee the distribution of assets to heirs.

After losing a loved one, the family will generally come together and hopefully encounter a properly written will and other crucial estate planning documents. Without a well-organized plan, the probate process can take much longer. Family members will be tasked with gathering information necessary for court.

Probate Court Proceedings

The petitioner, usually the estate executor or succession representative, will begin the process by filing a death certificate and a last will to the probate court. It is also useful to produce a list of know creditors and names and contact data of the decedent’s heirs. Smaller estate probate processes and those estates not contested by heirs can usually work through probate fairly quickly and efficiently.

Laws regarding probate are state-specific, and most states set valuation thresholds. In Louisiana an estate value is less than $125,000 may allow your lawyer to reduce court filing fees or even avoid probate court altogether.

For larger value estates, there is a substantial amount of necessary paperwork to validate the will, determine asset distribution, settle disputes, pay off remaining debts, and ultimately close the estate by paying the decedent’s final taxes. A checklist of documents to gather getting to know probate include :

  • Death certificates
  • Final will
  • Revocable trust documents
  • Heir and beneficiary contact data
  • Beneficiary designations
  • Pre or post-nuptial agreements
  • Previous three years of federal and state income and gift tax returns
  • Life insurance policies
  • Real estate deeds
  • Vehicle titles
  • Statements of financial accounts
  • Contracts and business agreement documents
  • Appraisals for high-value art, collectibles, or jewelry
  • Other known assets
  • Known debts
  • Ongoing bills
  • Medical and funeral expenses

Probate Proceedings Without a Will

The decedent’s residence states intestacy laws will apply if your loved one dies without a last will (intestate). All personal property without a beneficiary designation will be subject to the probate process at the court’s direction.

But some assets will avoid the probate process under state property title, state contract, or state trust law. These assets may include:

  • Beneficiary designate life insurance policies
  • Beneficiary designate retirement funds
  • Beneficiary designate annuities
  • Pay-on-death or transfer-on-death accounts
  • All trust property (in most circumstances).

Cost of Probate

Complex probate processes can be costly and take years to finalize, which is why many individuals retain an estate planning attorney to minimize probate proceedings. Lengthy proceedings can be frustrating for heirs getting to know probate who are rightful beneficiaries but must comply with the probate process. The average cost of probate varies by state; however, five to ten percent of an estate’s value in administrative costs and legal fees is not atypical. Some estates may lose as much as twenty percent of their value.

Other fees may include executor compensation, court fees for filings and paperwork, and a probate bond. After the probate proceedings are complete, a probate bond may be refunded. The most common reason for high probate costs occurs when beneficiaries contest the will, as ongoing litigation can be expensive. Issues relating to preparing and filing the decedent’s last federal estate tax return and any ensuing audit may also increase the cost of the probate process.

Most individuals will create an estate plan with their lawyer that allows assets to pass outside the probate process, typically through creating a revocable living trust. Depending on your situation, your estate planning attorney may recommend other types of trusts as well as ensure that named beneficiaries on accounts that pass outside of probate are up to date. Regularly reviewing your estate plan with your attorney can help minimize probate court interactions and streamline your heir’s inheritance process. For assistance, please contact our Ruston, LA office by calling us at (318) 255-1760.

Understanding Probate Court

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Probate is the process of validating someone’s will and making certain that an executor handles the assets, debts, and tax filings legally and in line with the decedent’s wishes. In Louisiana, a probate proceeding is known as a succession. Under most circumstances, to begin probate or open a succession,” an interested person, usually next of kin,  must file with the parish court where the decedent lived, even if there is a property for dispersal in another state. (For immovable property (real estate), an ancillary succession / probate must also be filed in the state where the land is located.)

By law, when a person dies, their estate must be dispersed among heirs, and outstanding debts paid and the filing of final government taxes, if applicable. These tasks are the responsibility of the named executor in the decedent’s will. If the decedent dies intestate (without a will), the probate court may assign an administrator to determine asset distribution to the heirs as outlined by Louisiana law, unless the distribution is relatively straightforward or the heirs otherwise agree.

What are the Steps of the Probate Process?

Very generally, after the will is approved by the judge and executor receives approval serving, the executor will receive Letters Testamentary from the court, which is a document that authorizes the executor to act for the estate and carry out the decedent’s wishes according to how their will is written. If there are deficiencies or requests for supplemental information, the court will set a future date for approval and review the additional data. Letters Testamentary  are essential to moving forward, and the executor should get them as quickly as possible and get two or three certified copies. 

If the probate court finds everything in order and determines the will in question to be legally valid, the approved executor sets about dispersing the assets to heirs, handling outstanding debts, and paying the decedent’s final taxes. If an heir is disgruntled regarding their share of assets to be received or left out of the will entirely (and if the person is a “forced heir”),  they may petition the probate court to effect a change. Contesting a will to a probate court as a potential or disgruntled heir usually involves claims that the decedent was:

  • Not of sound mind (mental state) when writing their will
  • Under undue influence
  • Suspicions of will fraud or forgery
  • Improper will execution

Also, if the descendant was under 24 years old or disabled, he or she may be a forced heir and thereby entitled to a certain portion of the estate, regardless of what the will states. Likewise, creditors who have a claim against the estate may also petition the probate court if the debt claim is not paid in its entirety. Generally, these debts are personal loans, credit card debt, medical expenses, and unpaid bills.

Understand Petitioning Probate Court

An heir or creditor may petition the probate court about their rights to the estate if the executor denies their claim. The probate court’s job is to determine if the claim is legitimate or not in response to a petition filing. Acting on the filing, the court will set a hearing date, and all relevant parties will receive notice of that date and time. The parties to receive notice include the executor , heirs, creditors, and anyone named in the will. These challenges to an estate require a knowledgeable probate litigation attorney to get the best results.

The executor provides detail of his actions regarding the estate to the probate court judge through a yearly accounting. At the end, he will file a final accounting and proposed distribution.   The judge will review the information and determine if all actions are in order, and if there are no objections,  the judge will sign a Judgment of Possession transferring title to the property. The estate will then be closed.

The Value of Working with an Attorney During Probate 

The probate court process can be lengthy and complex or short and straightforward depending on the size of the decedent’s estate, the validity or existence of their will, proper and prompt filing of information, and heir and creditor challenges to the estate.  Having an attorney assist you with your estate plan can help mitigate the risk of challenges later. Please contact our Ruston, LA office by calling us at (318) 255-1760 or schedule an appointment to discuss how we can help your planning needs to ensure your will won’t cost your family and loved ones time and money later.