Usually, but not necessarily always, some form of probate is needed following a person’s death. Probate is the legal process used to validate a Will, obtain the court appointment of the person who will be legally authorized to administer and settle the estate, and insure that ownership of estate assets will be transferred to those that are entitled to receive the inherited properties. Consultation with an attorney will answer this question in your particular situation.

If there are debts owing by the decedent (or even if not), and if there titled assets of the estate (vehicles, real estate, stock, bonds, bank accounts, etc.), it is likely necessary to file an Application to Determine Heirship, whereby the court determines who are the heirs of the estate; further to open an administration whereby the court determines who will be the personal representative of the estate and whether the administration will be independent or dependent.

In most cases, the initial hearing will take place in 3-4 weeks from date of filing. Thereafter, a normal non-contested independent administration, including distribution of property, will be concluded in 4-6 months. Consultation with an attorney will clarify this time line in your particular situation.

Click on the “The Probate Process” tab to learn more.

No. The need for probate is determined by whether (1) there is a need for someone to act for the estate to pay debts or otherwise wind up the affairs of the decedent, and (2) whether there are titled assets that require the legal authority of someone to transfer such assets to the heirs of an estate (such as real estate, vehicles, stocks, bonds, and bank accounts).

The cost for probate usually is paid from the assets of the estate. It is not unusual for the personal representative to advance the cost for attorney’s fees and out of pocket expenses, and later be reimbursed from the assets of the estate before distributing any assets to the heirs.

Not in my practice, and this is not usually the case with most attorneys. Attorney’s are compensated based upon actual services rendered. Compensation can be on an hourly basis, though in my practice, I usually set a flat fee and perform all agreed and stated routine services for one predetermined amount. Click on the “Fees” tab for more information.

Just being named in a Will to be Executor does not give that person the right to act as Executor before the Will is probated. A person has no legal right to do anything with a decedent’s property until and unless that person is appointed by a court to act in that capacity, and that person signs an Oath to so act.

Whenever there is a written agreement that has been set up by the decedent, whereby another person has been designated as a beneficiary, or has “right of survivorship”, a probate is not needed for transfer of that asset. Any such asset is considered to be a “nonprobate” asset. The right of the beneficiary to receive such asset is based on the written agreement between the decedent and the institution that holds such asset.