FAQ

The Probate Court handles all matters to do with estate administration, guardianships, and conservatorships.  The Probate Court appoints a personal representative for an estate, and the court can oversee the actions of the personal representative.  In cases with disagreements or controversies, the Court will determine the outcome. 

Formal probate requires more court oversight than informal probate does. Informal probate does not require that interested persons, such as family members and other beneficiaries of the Decedent’s estate, be given notice of the appointment of the personal representative until after appointment. Formal probate requires notice to interested parties before appointment.  If someone objects to the appointment, the court will hold a hearing.

A personal representative, in some states called an executor, is generally responsible for making the funeral and burial arrangements of the deceased, gathering and inventorying the assets, paying or resolving debts and taxes, and distributing the property of the estate.  The personal representative must file paperwork with the court to demonstrate that the estate was administered properly. 

A person may be nominated in a will to be the personal representative for the estate but naming someone in the will is only a nomination.  The person nominated is not automatically the personal representative.  A court must approve of the appointment of the personal representative after paperwork is filed with the court.  If someone dies without a will, a person can apply to the court to be appointed personal representative.  If others interested parties that have priority for appointment do not object, usually the person who applies will be appointed personal representative.

Probate assets are assets that are controlled by a person’s will. It can include real and personal property, money, and investments in accounts that do not have beneficiaries or someone named to receive the money upon death.  Non-probate assets transfer to another person without regards to the will.  This can include financial accounts, life insurance, or bank accounts that name a beneficiary or name a person to receive the asset as a payable on death or transfer on death.  It also includes property held in joint tenancy.

Joint tenancy with right of survivorship means that when two or more people own an asset the person that lives the longest gets full ownership and title to that asset.

Tenants in common is when two or more people own an asset and each owns their share individually and can pass his or her share of ownership to his or her heirs.

Many estates can be administered in around six months if there aren’t issues with creditors or controversies among the beneficiaries. Formal probate can take longer because there are hearings involved. The length of time depends on whether parts of the probate are contested and how quickly the personal representative performs his/her duty.  Notice must be provided to creditors and there is a period in which creditors may file claims against the estate.