Probate: What You Need to Know

Probate is the court process of settling a deceased person’s estate (whether they had a Will or passed away without a Will).  Here’s an overview of the process, what it entails, and how we can assist.

What Is Probate?

Probate is the court-supervised process of:

  • Validating a Will: Ensuring that the deceased person’s will is legally binding.
  • Appointing an executor: Officially naming the person responsible for managing the estate.
  • Settling debts and taxes: Paying any outstanding bills, loans, or taxes owed by the estate.
  • Distributing assets: Transferring the remaining property to the beneficiaries listed in the will—or, if there’s no Will, according to state law.

When Is Probate Necessary?

Not all estates need to go through probate. Probate is typically required if:

  • Property was not in a Trust.
  • The deceased owned property solely in their name.
  • Beneficiaries are not named for certain accounts or assets.
  • Named beneficiaries predeceased the decedent.
  • Beneficiaries are minors.
  • Heirs or beneficiaries are fighting about property.
  • Bank or Financial Institution is not accepting a Small Estates Affidavit.

Steps in the Probate Process

Here’s what to expect during probate:

1. Filing the Petition

  • The executor (or an interested party) files a petition with the probate court to open the estate.
  • If there’s a Will, it’s submitted for validation.

2. Appointing an Executor or Administrator

  • The court officially names the person responsible for managing the estate, ensuring they have the legal authority to act.

3. Identifying and Valuing Assets

  • The executor/administrator creates an inventory of the deceased’s assets and determines their value. The inventory is filed with the court.

4. Paying Debts and Taxes

  • Notice is provided to creditors – this will sometimes require publication of the probate in case in a newspaper.
  • Outstanding bills, loans, and taxes must be paid before distributing the estate to beneficiaries.

5. Distributing the Estate

  • Once debts are settled, the executor distributes the remaining assets according to the Will or state law if no Will exists.

6. Closing the Estate

  • The executor provides the court with a final accounting, and the estate is officially closed.

Challenges of Probate

While probate ensures legal oversight, it can come with some challenges:

  • Time-consuming: Probate can take at least 6-12 months or longer if real estate is involved, it is a complex estate, heirs are fighting about property, an heir is difficult to find, etc.
  • Costly: Court fees, attorney fees, executor fees, publication fees, and other expenses can reduce the estate’s overall value.
  • Public process: Probate records are public, meaning details about the estate and its beneficiaries are accessible to others.
  • Potential disputes: Beneficiaries or creditors may contest the Will or other aspects of the process.

How to Minimize or Avoid Probate

While probate is necessary in some cases, proper estate planning can help you avoid or simplify it. Consider these strategies:

  • Establish a Living Trust: Assets in a trust bypass probate and are distributed directly to beneficiaries.
  • Name Beneficiaries and Pay on Death Beneficiaries: Designate beneficiaries for retirement accounts, life insurance policies, bank accounts, and other accounts.  Ensure you review these beneficiaries annually or at major life milestones.
  • Joint Ownership: Hold property jointly with rights of survivorship – this works well for married couples.  There can be disadvantages to holding property jointly with a non-spouse.
  • Transfer on Death Deed (TODD): File a Transfer on Death Deed for real estate.  This can work well if you are leaving the property to one person.

How We Can Help

We can guide you through every stage of probate or help you develop an estate plan to minimize its impact.

We are currently assisting clients with probate cases in Johnson, Wyandotte, and Miami counties in Kansas.