Probate FAQs

Do I have to Probate my late husband/wife’s estate if s/he owed no debts and we owned our home together?

Generally, where there are no debts to be paid there is no need for a formal probate.  There are less costly forms of probate that exist to settle property ownership issues without complicated court proceedings.  However, many people make the mistake of thinking that just because both spouses’ names were on a deed to property that the survivor owns that property.  This is not true unless the Deed specifically calls for “joint tenants with rights of survivorship.”  Any other kind of deed language like “as husband and wife” or “jointly as a married couple” or “tenants in common” or “joint tenants” does NOT automatically result in the survivor owning the home.  

Can I open a probate any time after someone dies?

No, a probate can only be opened within 4 years of the date of death.  After that, there are limited choices for how to deal with titled property.

Can my siblings and I just ignore what my parents said in their will and divide things the way we wish?

This question involves two issues.  The first is that in Probate, creditor Claims come first.  In other words, no one gets anything until all the allowed claims against the estate are paid.  The second is that Probate law does allow for settlement agreements to be executed among heirs so that distributable net estate proceeds can be divided differently than in a will.  But, and this is an important but, the agreement must be unanimous among everyone (known, unknown, identified or not) who could possibly be affected by the outcome.

How long does Probate take?

On average a simple probate takes 9 to 12 months.  Probate can take 1 ½ to 2 years.  Contested Probate can take more than a five years.

Do lawyers handle Probate cases on contingency or for a “cut?”

No, lawyers who handle the Estate and represent the Executor (with a will) or Administrator (no will) are limited to charging fees by the hour and only as approved by the Court.  In a simple case the lawyer can charge a flat fee but must disclose the fee and will be limited to that amount.

Does Probating an estate increase the taxes due?

No, taxes due on an estate are no different whether the estate is settled in Probate or out of Court.  People often make the mistake of thinking that if “the government doesn’t know about it, then the taxes aren’t due.”  Since the Statute of Limitations to collect taxes never begins to run until a tax return is filed, there is no such thing as hiding from the government or outlasting the government.  It is best to just obey the law, file the returns, and pay any tax due.

Does real estate have to be sold if I open Probate?

No, in fact, real estate cannot be sold in Probate unless it is directed to be sold in a will or the estate has more debts than can be paid out of the proceeds of all of the personal property, cash, accounts, and holdings in the estate.  The heirs to real estate are entitled to ownership of the real estate unless there is cause to sell.

If all that my parent had was a car and some clothing, do I have to open Probate?

No, unless they have debts, or have bank accounts or other financial assets that do not have death beneficiaries designated on the accounts.  Cars can be handled directly with the local tax office using a DMV form declaring heirship.  But if you have to open Probate, then the cars are estate assets and must be handled through the estate.

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