Frequently Asked Questions

What is Probate?

Probate is a court-supervised process in which property owned by someone who has died is transferred to his or her heirs. Generally, a Will describes how the assets of the deceased will be distributed. If a person dies without a Will, however, the deceased’s property will be distributed under his or her state’s “intestacy laws” to surviving relatives.

Who is responsible for managing probate?

Typically, the Executor named in the Will manages probate. If there isn’t any Will, or the Will fails to name an executor, the court will appoint someone called an Administrator to manage the process. Most often, the Administrator is a surviving spouse or child of the deceased or the person who inherits the bulk of the deceased person’s assets.

How is Probate Started?

The person who has been named Executor in the Will retains an attorney to file a Probate Petition and the decedent’s original Will with the Surrogate’s or Probate Court. If no Will exists, the person seeking to become the Administrator will retain an attorney to file a Petition for Letters of Administration.

What Does and Executor or Administrator Do?

Duties of an Executor or Administrator typically include:

  • Identifying, collecting and managing the deceased’s assets;
  • Having assets appraised;
  • Paying the deceased’s debts and taxes;
  • Paying expenses of administering the deceased’s estate; and
  • Distributing the estate to the deceased’s heirs.

How Long Does Probate Take?

The short answer is from 7 months to 3 years. Ultimately, it will depend on such factors as the size of the estate, the nature of the assets in the estate, the number of heirs and their level of cooperation.

What assets are subject to probate?

As a general rule, assets owned individually by the deceased at his or her death will be subject to probate. Assets held in joint tenancy, in accounts with designated beneficiaries such as retirement accounts and life insurance policies or in accounts with transfer/payable on death provisions are not subject to probate.

Who is responsible for paying estate taxes?

Both the State and Federal government collect estate taxes if the value of the estate exceeds a certain threshold. This threshold constantly changes, and varies from state to state. The Executor or Administrator is responsible for ensuring that estate taxes are paid. Typically, this is done from the estate’s assets.

Is the Executor or Administrator paid?

An Executor or Administrator is entitled to be paid what’s called a “Commission” for serving as such. The amount of the Commission is determined by statute, and is paid from the estate assets.