An Overview on Probate and Estate Administration Law
Distributing property with and without a willBy Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on March 2, 2023
Use these links to jump to different sections:
- Common Questions for an Attorney
- Finding the Right Attorney for Your Needs
- Why Should I Talk to a Lawyer?
While the law can’t answer what happens when we die, it can tell us what will happen to our property. When someone dies, all their real property, investments, stocks, bank accounts, retirement accounts (IRAs), and debts are combined into one broad category called their estate. What happens from there is governed by probate and estate administration laws.
The process of distributing a decedent’s assets can seem straightforward, but it can be complicated if someone died without a will or if some of their family members take issue with the contents of an existing will. The following is designed to give you a brief overview of the general processes for administering someone’s estate so that you feel confident going to a lawyer with your questions.
When someone dies, they usually have assets and debts that make up their estate and need to be addressed. These assets and debts need to be located and distributed or paid for. States set their own requirements about these processes, but there are two general scenarios: when someone dies with a will, and when someone dies without a will.
With a Will
Probate is the judicial verification of a last will and testament, which means courts usually distribute property in accordance with the will.
This process begins when the executor (also called the personal representative of the estate) files a petition with the probate court (usually, they must include the decedent’s death certificate). The executor is an individual who is appointed by the testator in the will itself. If the testator did not name an executor in the will, or the named executor is unable or unwilling to serve as executor when the time comes, the probate court will appoint an executor instead. The executor has a fiduciary duty to represent the estate and the best interests of the testator in the probate process.
When the probate petition is filed, notice must be given to all named beneficiaries in the will. If there isn’t a will, then people who would inherit under state law must be notified. The probate court then rules on the validity of the will and oversees the distribution of the assets of the estate. Debts are usually paid by the estate.
If the requirements for a will are met, the court generally assumes the will is valid. These requirements include the testator’s capacity and intent to create a will, and states usually require witnesses to sign the will.
Surviving spouses, children, or other people mentioned in the current will or a previous one may contest the validity of the will. These contests are handled in the probate process and should be brought to the court before the process is completed. There are many personal reasons someone might want to contest a will, but you should be aware that there are four main legal reasons to do so:
- The will wasn’t signed or witnessed in line with state requirements
- The decedent didn’t have the necessary intent or capacity to sign the will
- The will was signed because of someone else’s fraud
- The decedent was under undue influence when they signed the will
These contests can be tricky because the creator of the will isn’t around to explain why they signed the will. After the court hears the evidence from both sides, the judge will decide the validity of the will. Once the court has decided, the court will appoint an executor (usually named in the will) and oversee the execution of the will.
Without a Will
When a person dies without a will or an existing will is found to be invalid, the estate goes through an administration process governed by state intestate succession statutes. The court will first appoint a personal representative or administrator who will be responsible for determining the value of the estate and paying debts, taxes, and expenses.
The most important thing intestacy does is to determine who gets the decedent’s property and in what order. The statutes also make determinations about the care and guardianship of any minor children.
Estate administration statutes usually distribute assets to the decedent’s spouse and children first, and if there are no surviving family members, the estate will go to the state. This can result in distant family members inheriting the estate. Friends and charities will not be able to inherent under intestate succession, even if that’s what the decedent would have preferred. Many people choose to create a will so they can make these determinations before they die.
Common Questions for an Attorney
Below are some common questions you might want to consider when meeting with an estate planning attorney for legal advice about your estate plan.
- What are your attorney’s fees and billing options?
- Who needs to file a probate petition?
- I was named executor—what are my responsibilities in the administration of the estate?
- What is involved in probate proceedings?
- Can I challenge a will if I think my parent didn’t want to sign it?
- How are funeral expenses covered?
- What happens to remaining assets not distributed in a will or living trust?
Finding the Right Attorney for Your Needs
It is important to approach the right type of attorney—someone who can help you through your entire case. To do so, you can visit the Super Lawyers directory, and use the search box to find a lawyer based on your legal issue or location.
To help you get started, you may want to consider looking for a lawyer with experience in probate law.
Why Should I Talk to a Lawyer?
With or without a will, the distribution of a loved one’s estate can be tricky because there are many rules about when and how property passes beneficiaries. Sometimes you have to factor in tense familial relationships and will contests, which can further complicate the process. An experienced probate attorney will know all the rules and the best way to navigate uncomfortable or challenging relationships.
A lawyer will be able to anticipate potential problems with your case and advise you on how to approach them. Your lawyer will also keep track of deadlines and file all the paperwork with the necessary courts and agencies, giving you one less thing to worry about.
Additional Estate Planning & Probate articles
- What is Estate Planning Law?
- The Key Life Events That Demand a Fresh Look at Your Estate Plan
- What Happens if Someone Dies Without an Estate Plan?
- What’s the Difference Between an Estate Plan and a Will?
- What Digital Assets Should I Include in an Estate Plan?
- What Assets Should Be Considered When Planning Your Estate?
- What Is the Role of an Executor in Estate Planning?
- Four Ways To Reduce and Avoid Estate Tax
- How Can a Probate Court Process Be Avoided?
- What Does an Estate Planning Attorney Do?
- What Is a Power of Attorney?
- How to Succeed at Succession
State Estate Planning & Probate articles
Find top lawyers with confidence
The Super Lawyers patented selection process is peer influenced and research driven, selecting the top 5% of attorneys to the Super Lawyers lists each year. We know lawyers and make it easy to connect with them.Find a lawyer near you