Probate is the process of managing and distributing the assets in a decedent’s estate. The probate process is usually led by an executor (also known as an administrator or personal representative). An executor’s duties include finding and organizing important estate documents, maintaining the estate’s assets, valuing and distributing those assets, communicating with beneficiaries, creditors, or other interested parties, and working with the probate court. The time that an executor spends administering an estate may be influenced by whether an interested party initiates probate litigation or whether the estate contains assets transferable outside probate.
An executor, administrator, or personal representative manages and transfers a decedent’s assets through a process known as probate administration. Executors may be nominated in a will or appointed by the probate court. During the formal probate process, the executor proves the validity of the decedent’s will to the court, settles creditor claims, and transfers assets to beneficiaries or heirs according to a will or other estate planning documents and state law.
In addition to formal probate proceedings, many states offer informal probate and small estate procedures under which the probate court takes a limited role. However, probate court involvement may be useful or necessary if the executor must ask the court to rule on questions of intestate succession or determine how certain events affect a will’s terms. Probate court involvement may also be unavoidable if the estate contains property that must pass through probate in a state other than the state in which the decedent was domiciled through a process known as ancillary probate.
Most probate proceedings are uncontested and progress without issue. However, if disputes arise during probate administration, an interested party may initiate probate litigation. Disputes addressed through probate litigation may include:
An interested party cannot initiate probate litigation simply because they do not like a fiduciary, such as the executor, or they do not like the way in which estate assets are being handled. For example, a party filing suit against an executor generally must either object to estate accountings, dispute the executor’s fees, or allege that the executor has breached their fiduciary duty. A party contesting a will must typically allege that the will is invalid due to undue influence, a lack of testamentary capacity, improper execution, fraud, or mistake. However, probate litigation may be helpful if an interested party fears that a fiduciary’s actions are harming the estate or if an estate planning document, such as a will, does not conform with the author’s intent. Furthermore, certain beneficiaries, heirs, and creditors may initiate probate litigation to protect their rights with respect to the estate.
Transferring Property Outside Probate
Probate court proceedings may be simplified or eliminated if the decedent’s estate contains assets transferable outside probate. Often, the process for transferring eligible property outside probate is straightforward and may be achieved with minimal executor involvement, if any. Assets and types of ownership that avoid probate proceedings include:
Assets transferable outside probate may vary by state. For example, some states allow a vehicle owner to register the vehicle with a transfer-on-death (TOD) beneficiary. If a vehicle has a TOD designation, the beneficiary may only need to reregister the vehicle in their own name to complete the transfer. Some states also offer TOD deeds for real estate. Other assets that commonly have designated beneficiaries include retirement accounts, life insurance plans, bank accounts, and securities, such as stocks and bonds.
What is the probate process? Probate is the process by which a decedent’s estate is settled and its assets are distributed. During the probate process, the executor will pay the estate’s debts and taxes, resolve any litigation brought by beneficiaries, heirs, or creditors, and transfer estate assets to their new owners.
Do all estates need to be probated? No. If all estate property is transferable outside probate, opening a probate case is unnecessary. Additionally, many states offer small estate procedures, which simplify the probate process and may allow an estate to avoid formal probate altogether. States that follow the Uniform Probate Code (UPC) offer informal probate procedures consisting mostly of paperwork.
Am I required to serve as an executor? No. An individual named as an executor in a will or considered for the role by a probate court may decline the job. If an executor wishes to resign after probate proceedings have begun, they must ask the court’s permission.
What if the decedent died without a will? If the decedent died without a will, their assets will be distributed according to the state’s rules of intestate succession. Generally, a decedent’s surviving spouse and children will inherit their property, followed by other relatives and eventually the state.
Becoming an Executor Executors manage and distribute the assets in an estate. They may be nominated in a will or appointed by a court. Executors have a fiduciary duty to act in the best interest of the estate.
Small Estates Estates of modest value or those with assets passing outside probate may qualify for small estate procedures. These procedures involve mostly paperwork and can save the estate time and money.
Will Contests A will contest is an objection to a will’s validity. Wills sometimes may be challenged for undue influence, lack of testamentary capacity, improper execution, mistake, or fraud.
Litigation Against the Executor If an interested party believes that an executor’s actions are harming an estate, they may bring suit. Issues include breaches of fiduciary duties, objections to accountings, or executor fee disputes.
Assets With Designated Beneficiaries Assets with designated beneficiaries transfer to their new owners without probate. These commonly include retirement accounts, life insurance policies, bank accounts, and securities such as stocks.