Probate administration is the probate process in which real estate and other assets are transferred to beneficiaries and heirs according to the decedent’s will. If the decedent died intestate, or without a will, then the assets are distributed according to regional laws. Before the probate court transfers any assets, though, creditors are often paid and the decedent’s estate must also pay for any taxes owed. Some jurisdictions have different types of probate administrations, depending on the total value of the estate. Smaller estates may be able to use a shorter and less expensive form of probate administration than the formal probate administration required for larger and more complex estates.
Each jurisdiction has its own rules for what is considered a small estate, and the probate administration for those estates is different than for regular estates. For example, the court is often able to quickly transfer all assets to a surviving spouse, or if there is none, to heirs after funeral expenses are paid, without a court hearing. Regular estates must undergo a more formal probate administration process, which takes much longer to complete. A court hearing is required, and debts and taxes must be paid first before any transfer is made.
A personal representative, who is often named in the decedent’s will, is appointed by the court to administer the property of the estate. The probate court sees that the assets of the decedent are accounted for, that all debts and taxes are paid, and that assets are legally transferred to the correct beneficiaries and heirs. Probate administration is required when the assets owned by the decedent are still in his or her name when the person dies. Individuals can avoid probate proceedings altogether, for instance by transferring assets to a trust instead of leaving property as an inheritance. Certain types of property are often not required to be a part of the probate process, including property that was owned jointly with a right of survivorship.
A probate attorney specializes in probate administration law and can help beneficiaries, heirs, or both with the probate process, which can take several months to complete. One of the tasks of a probate attorney is to do everything legally possible to prevent a will contest, which can result in lengthy litigation. A probate lawyer also notifies creditors of the proceedings and compiles the paperwork necessary to pay off all remaining debts. Taxes also have to be paid in full before the court will transfer assets, and many probate attorneys can file and complete past and current tax returns on behalf of the estate. The probate attorney can provide any legal assistance that the personal representative of the estate needs in performing his or her duties.
