5 Things to Know About Probate Court
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Probate court is a state or local court that determines if a person’s will is valid, officially names executors or administrators to manage and distribute a deceased person’s assets and oversees the distribution process. Some probate courts also handle matters of guardianship and conservatorship.
Every state’s probate court system has its own procedures regarding the probate process, such as estate value limits and filing deadlines. Here are some key things to know.
1. Probate courts often let small estates skip the probate process
You may not have to go through the probate process if your estate is worth less than your state’s size limit. Different states have different limits.
For example, in Colorado, "If none of your probatable assets are real estate and all of your probatable assets are less than $80,000, you don’t have to probate,” says attorney Karen Brady, a founding partner with Brady, McFarland & Lord LLC in Arvada, Colorado. “That’s a small estate proceeding."
You can work with an estate planning attorney to determine what your assets are worth and whether they meet your state’s limit.
2. The probate court may look at some assets and not others
In most cases, probate courts will want to look at assets owned solely by the decedent, as well as most bank accounts and real property, according to Roman Aminov, an attorney at the Law Offices of Roman Aminov, PC in Flushing, New York.
However, designations you’ve made on accounts at your financial institutions can matter. “If the asset had a beneficiary — like an investment account, IRA or life insurance policy — or was jointly held with rights of survivorship or was in a trust, it avoids probate,” he says.
Assets that probate courts commonly look at include:
Real estate.
Bank accounts.
Investment accounts.
Personal effects.
Business interests (like LLCs and corporations).
» MORE: How a power of attorney works
3. A probate court officially names the estate’s executor or administrator
An executor is a person, bank or trust company that carries out the deceased's wishes and settles the estate. Depending on the state, an executor might also be called a “personal representative” or “administrator” of the estate.
People often name executors in their wills. The probate court ensures that person is eligible to become an executor and then formally appoints them, giving them the power to access the deceased person's accounts and transfer the assets. If you don’t name an executor or the executor you named can’t serve, the court may appoint one.
“I always remind clients that when I die, my next-door neighbor can’t come in and start selling my assets. He doesn’t have legal authority to do that," Brady says. "The court has to come in and appoint someone who can have that authority to manage my affairs. The rules are either in my will or in the laws of how people inherit without a will."
4. Probate courts handle disputes
Probate courts oversee the executor’s work distributing the assets and help tackle any hurdles.
In many cases, going through probate court is required to receive an inheritance, Aminov says. “Typically, clients will discover that their parents forgot to put beneficiaries on an account and realize that they have to go through probate to access the funds,” he says. “Similarly, if a loved one passes with real estate in their name, the probate process is necessary if there is a will.”
Probate courts can also handle conflicts such as a relative contesting the will in cases of unequally distributed inheritance or other disputes.
» MORE: Who can contest a will and how
5. Probate courts set deadlines
The laws of each state dictate how long a person has to file a will with the probate court. Be sure to check with your state court to ensure you file for probate in line with the laws of your state.
For example, Colorado requires wills to be filed with the court within 10 days of the death (even if probate isn’t warranted).
In New York, there is no time limit to file the will with the probate court. Aminov says he has handled estate matters decades after a person passed away.
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