Frequently asked questions

1. What is probate?

   Probate is the legal process through which the court oversees how an estate will be distributed. If you signed a last will, your estate passes to the beneficiaries named. If not, your estate passes to relatives based on state law. Generally, a formal probate action is required if an estate includes real property. But in many states, probate isn't required and other legal remedies are available if the estate is of minimal value. If you do not have a last will, the court will assign someone to manage your estate and its distribution, which will be based on your state's laws.

   Some people think having a last will allows them to avoid probate. This isn't true. A last will is submitted to probate court to determine who receives your property, who is appointed as guardian of any minor children, and who will be responsible for carrying out the last will's requirements. If the total value of your estate is below a certain amount, which varies state by state, a probate may not be required. Depending on where you live and the size of your estate, probate can be very expensive and time consuming, with court costs, attorneys' fees and other expenses either paid directly out of, or reimbursed by your estate.

2. What does an executor do?

   Depending on the size of the estate and where the person lived and owned property, some of an executor's main responsibilities are to (1) attempt to locate the original will and submit it to the court, (2) file a petition to be appointed by the court, (3) notify the decedent's family and anyone named in the will, (4) collect the decedent's assets, (5) arrange for the estate to pay the decedent's debts, (6) distribute the estate's remaining assets according to the instructions in the decedent's will, and (7) file tax returns on behalf of the estate.

   If necessary, the executor has the authority to sell estate property, as well as defend against any challenges to the contents of the will or other objections. Generally, executors hire attorneys and accountants to assist them throughout the process. They are paid out of the estate assets.

3. How much does probate cost?

   It depends on where it takes place, the estate's complexity, and whether anyone challenges the will. All states require the payment of court fees, which often amount to hundreds of dollars. In most states, attorney's fees are based on what's reasonable for the tasks performed. The fees rise if the will is contested, real estate is sold during the process, or other extraordinary issues arise. In a few states, attorney's fees are based on the value of the estate's assets. There are a number of miscellaneous costs, such as property appraisal fees, filing service fees and the like. The costs and fees are paid out of the estate assets.

4. Who handles the estate if there isn't a will?

   If there isn't a will, or if the will doesn't name an executor, state law dictates who is in charge in order of priority. Generally, if the person was married at the time of his or her death, the surviving spouse is first in line. If he or she declines, generally the person's children are next in priority, followed by parents, siblings, and so on. If there is more than one person in a particular group, one can serve alone or two or more could serve together. Ultimately, the judge will approve the appointment of the person in charge of administering the probate, which is typically referred to as the administrator. The administrator will need to do all of the same tasks as the executor.

5. What if the person named as the executor doesn't want to be the executor?

   If the person named as the executor of a will does not want to serve, he or she can submit a simple, signed document to the court stating that fact. The document is usually submitted to the court by the backup person asking to be appointed executor.

6. I am a beneficiary in a will. When can I expect to receive my share?

   When an estate is distributed depends upon a variety of factors. If an estate is relatively small, most states have simple procedures available allowing distribution in a couple of months. If the estate is more sizable, depending on where the property is located, it may take a year or longer. If anyone challenges the validity of the will, it could take significantly longer.

7. Who can challenge a will?

   Generally, anyone who is (1) a beneficiary of the will, (2) an heir of the deceased person who was not named as a beneficiary in the will, or (3) a beneficiary named in a prior will can challenge the validity of a will.

8. What are the main legal grounds to challenge a will?

   Wills are challenged for a number of legal reasons, including:

   1. The will was signed improperly.
   2. Someone improperly influenced the person making the will and received an improper benefit.
   3. The maker of the will was not mentally capable of creating the will.
   4. The terms of the will are ambiguous.

9. What are the main reasons a will is challenged?

   Wills are generally challenged by heirs who are excluded from a will or by beneficiaries who receive less than they would be entitled if the will did not exist. For example, if a widow had three children and only named two of them as beneficiaries, the excluded child may consider contesting the will. Or if she named them all as beneficiaries, but did not give all three children equal shares, the child or children who received a smaller portion might consider challenging the will. Also, if there was a prior will that provided for a different distribution of the estate, a beneficiary of the earlier will might consider challenging the validity of the later will.

10. Who pays the legal fees related to the challenge of a will?

    Typically, the fees and costs incurred by the estate for defending against the challenge are paid out of the estate, while those incurred by those challenging the will are paid by those individuals.

11. What is a living trust?

    It's a legal document that states who you want to manage and distribute your property if you're unable to do so, and who receives it when you pass away. Once signed, you transfer ownership of your assets into the trust and you remain in complete control of your property. The trust property can be managed and distributed without going through the probate court.

12. When is property in a living trust distributed?

    If the trust is created by only one person, the trust is distributed or allocated upon that person's death. In many cases, if a living trust is created by spouses, property in a living trust stays in the trust until both spouses pass away. After the death of the sole, or surviving grantor, the successor trustee arranges to pay any remaining bills and taxes, provides any required notice regarding the trust, and then makes any distributions or allocations based on the terms of the trust. Sometimes the trust property is distributed directly to the named beneficiaries. Alternatively, the property can remain in the trust for the benefit of the named beneficiaries until the beneficiaries reach the age(s) designated in the trust.

13. Can a living trust be challenged?

    Generally, yes, a person named as the beneficiary of a trust, or a relative of the deceased grantor who would have received a portion of the deceased grantor's estate if the trust did not exist, can challenge the validity of the trust. The time to file the challenge with the court is limited based on state law. The grounds for challenging the trust are similar to those for a last will.

14. What is a last will?

    A last will is a document that directs the management and distribution of your property after your death—and states who you nominate as guardian to care for any minor children. Depending on the value of the property distributed under your last will, it may be necessary to go through the probate process prior to distribution of the property.

15. How do you avoid probate?

    Typically, probate is required when property is in the owner's name without a designated beneficiary when the owner passes away. Property that doesn't require probate is property held in trust, in joint tenancy or community property with the right of survivorship. Also if an account has a designated beneficiary, probate is not required.

16. What if a person doesn't own much? Is probate still required?

    If a person dies owning assets in his or her name alone worth a total less than a certain amount established by state law, those assets can be distributed without going through probate. The threshold amount varies by state and can change each year, but it is generally from $20,000 to $200,000. Generally, the property can be distributed if the people entitled to it sign a document spelling out certain facts, and swear that the content is accurate. Then the document is delivered to the people or institutions holding the property, who are required to distribute the property as spelled out in the document.

17. Will my family have to pay estate tax?

    It depends. There are two levels of estate taxes: federal and state. The federal government only taxes individuals who pass away in 2021 with estates valued at $11,700,000 or more, but this exemption amount can change each year. As of 2021, most states do not tax estates. Those that do are Connecticut, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New York, Oregon, Rhode Island, Vermont, and Washington. Each state has different rules for when estate taxes kick in, so it is important to talk to a tax professional if you live in one of these states.

18. How do I name a guardian?

    Many parents name a specific person or people in their will to take care of their minor child if both parents pass away. If it becomes necessary, the nominated guardian would file documentation with the court requesting to be formally appointed.

19. Does a parent of a minor have to be appointed as a guardian?

    Generally, no. A parent is the natural guardian of his or her child. However, one circumstance in which a guardianship would be required is if the child directly receives assets worth over a certain amount established by state law. The parent would be authorized by the court to serve as the guardian of the minor's estate. This can be avoided by holding the assets in a trust or custodial account for the child's benefit.

20. I don't want my child's other parent to be the guardian of my child after I'm gone. Can I do anything about it?

    Unless the other parent no longer has parental rights, or has consented to the appointment of a different guardian, he or she will almost certainly be the guardian of your minor child upon your passing. However, you can indicate in writing the reasons why you don't believe this would be in the child's best interest and the court will consider it.

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