What You Should Know About Probate Courts

probate courts

Losing a loved one is difficult enough. But it can be even more challenging if you also have to navigate probate court.

Probate courts are specialist types of courts that deal with the property and debts of an individual who has just died (the decedent). This often involves validating the last will and testament if there is one and distributing any assets to the correct beneficiaries or heirs.

But the probate process can be confusing and time-consuming, especially if you’re unsure of what to expect. Keep reading to learn more about probate courts and how to prepare.

What Is Probate?

The legal term probate refers to the process of validating a last will and testament or administering an estate after an individual passes away. This includes taking inventory of the decedent’s assets, paying any debts and taxes, and distributing any remaining probate property to beneficiaries.

The probate process starts as soon as a family member or the executor files a petition for probate, the will, and a copy of the death certificate. If the decedent had a will, authenticating the document is a priority. After that, the process is relatively straightforward.

But, around 54 percent of Americans don’t have a will. While a little under a quarter of over-65s have no will in place, this figure increases to 80 percent for those under 30. In cases where the decedent did not leave a will, probate court must play a much more active role in the process.

How Long Does Probate Take?

In most cases, probate takes at least several months to complete. That said, more complex cases can take years before a final probate court decision. The main factor in determining the expected probate timeline is whether the decedent left a will or not.

Other factors that can impact the length of the probate process include the size of the estate, whether assets must be sold to pay creditors, and any challenges to the will. Since probate courts operate on a state level, certain state laws may also affect the length of the process.

What Goes Through Probate Court?

In most cases, probate is necessary if the decedent had property in their name only. This might include real estate or a car. Although, certain assets would not need to go through probate. These include:

  • Assets assigned to a living trust
  • Life insurance policies with designated beneficiaries
  • Pension plan distributions
  • Salary, wages, or commissions owed to the deceased (up to a certain limit)

Once it’s clear which assets are subject to probate and which aren’t, the case can go through the probate court process.

The Probate Court Process

The formal probate process follows specific steps to deal with issues as and when they arise. But the process can look a little different depending on whether the decedent left a last will and testament or not.

Probate Court With a Will

When there is a will, the probate process follows these steps:

  1. In the first probate court hearing, the court appoints the executor for the decedent’s estate. The executor is normally the decedent’s spouse, civil partner, or child
  2. Once appointed, it is up to the executor to distribute the decedent’s estate, among other administrative duties. The court gives the executor the authority to pay bills and sell assets. But, the executor may need to post bond beforehand to protect the estate from any potential adverse consequences of their actions.A second hearing may be necessary if any objections to the will were raised in the initial hearing
  3. The executor then proceeds to inventory the deceased’s assets, notify and pay any creditors and outstanding bills, sell assets if necessary to pay what’s owed, pay taxes, and file a final tax return
  4. After completing those tasks, the executor distributes the remaining assets to the beneficiaries named in the will
  5. Through this process, the probate court oversees the executor’s activities and handles issues that may arise. For instance, if the executor objects to a claim, the court will hear the evidence and make a ruling
  6. As a final step, the executor must usually provide a detailed account of how they handled the estate. Once the court approves this, it can close the probate process

The process detailed above might not always be necessary. For example, when the estate value is under a specified dollar amount. In these cases, the court can agree to a more informal probate process with less court oversight called a summary probate.

Probate Court Without a Will

When a person dies with no will, it is up to the probate court to distribute the decedent’s assets to their next of kin. They must do this according to the relevant state’s probate law. This is called the law of intestate succession.

The law outlines the order in which the next of kin inherit. The court will ensure that the surviving spouse gets a share of the decedent’s property. The law then further breaks down the order in which children, grandchildren, and other family members can inherit.

The exact details of the law of intestate succession vary from state to state. As such, you might consider it the will the state makes on behalf of the decedent if they didn’t make their own.

How Much Does Probate Cost?

Probate costs can vary from case to case as well as from state to state. Some fees to consider include:

  • Attorney fees
  • Accounting fees
  • Appraisal and land surveying fees
  • Probate court hearing fees
  • Filing fees
  • Executor fees or compensation. In Georgia, executor fees are around 2.5 percent of the total estate value

These fees can soon add up, with even uncontested probates in Georgia costing up to $4000. If there are issues such as a contest to the process, though, the cost of probate could increase to $10,000, $15,000 or even more.

Your Guide to Probate Courts

As this guide to probate courts shows, the probate process can be long and complex.

To help navigate the legalities of probate court, grieving families often find it helpful to engage the services of our expert probate lawyers here at Smith Barid. As estate planning professionals, not only can we ensure a faster probate process, but our guidance and support will make the experience a lot smoother and less stressful for all involved.

Get in touch with us for more information or to schedule an appointment.


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