The Probate Process
Our Condolences
If you are here to learn about the probate process after the passing of a loved one, we first want to say that we are very sorry for your loss. We know that this is a difficult time for you and your family as you deal with a multitude of emotions while you are forced to make difficult decisions as you grieve.
We hope that the information you find on this page will simplify any legal and administrative headaches you might otherwise face during such a difficult time.
Overview Of The Probate Process
Probate is a process through the court system to ensure the legal transfer of assets from the person who passed to the names of their intended beneficiaries or legal heirs (or ancestors).
Probate is generally also necessary to prove the validity of a will, appoint someone to manage the estate, inventory and appraise estate property, pay the deceased’s debts and taxes, and distribute the estate property as directed by the will (or by state law if there is no will).
The probate process can be very time consuming, so we recommend you contact an attorney to assist you with the process. Nevertheless, in Maryland, the process will go like this:
- Determine Who Has Been Desginated As Personal Representative Or The Executor Of The Estate Of The Person Who Passed.
State law designates who is entitled to begin the probate process. The person with highest priority is the person who is named in will of the person who passed as the “executor” or “personal representative.” If there is no will, then the law generally establishes a hierarchy of who is eligible in what order, normally starting with a surviving spouse, then surviving adult children, and so on.
- Petition The Court To Probate The Estate
The individual who has priority would start the probate process by preparing the legal documentation, obtained by the Court (e.g. the Register of Wills of the appropriate county in Maryland) to initiate probate and by filing the original will with the probate court or having an attorney prepare the legal documentation to initiate probate process on their behalf. Most of the time advance notice to interested parties is required before probate is officially opened.
- Make And Inventory Of The Estate
The Personal Representative/Executor will make an inventory of the Estate by determining the value of the personal assets (e.g. business interests, real estate, vehicle), and the value of accounts (e.g. investments, retirement accounts, life insurance policies) of the person who passed at the time of death.
- Consolidate The Estate, Manage Expenses
Get a new EIN from the IRS for the Estate. Take the death certificate and proof from the Court that you have been appointed Personal Representative/Executor and open a bank account on behalf of the Estate. You will pay expenses for the Estate from this account.
Also, be sure that the remainder tax year of the decedent's (person who passed) life is properly filed with the IRS and the State of the person who passed.
- Accounting And Distribution And Payment Of Claims Of The Estate
The State will require the Personal Representative/Executor to file an accounting for the Estate. The Personal Representative/Executor has a fiduciary duty to pay all valid claims against the Estate.
- Make Final Distributions
- Close The Estate
- Close The Estate
How Long Does Probate Take and How Much Does It Cost?
Probate proceedings typically take around 6-12 months if everything goes smoothly. Some probate cases linger for two or more years especially if beneficiaries are disputing or if the person who passed left property in multiple states.
Regarding cost, every probate proceeding is different. Probate costs include court filing fees, attorney fees, appraisal fees, professional fees such as tax preparation, executor compensation, document certification fees, recording fees, and more. Some states allow fees to be determined as a percentage of the probate assets, and other states provide that fees are determined.
How Are Probate Assets Distributed If There Is No Will?
When there is no will or trust to dictate who receives what, then probate assets will be distributed according to state law. The typical hierarchy is that all probate assets go to your surviving spouse; or if you do not have a surviving spouse, then all probate assets are split equally among your children; and so on following the branches of your family tree.
Where it gets tricky is if your surviving spouse is not the parent of your surviving children; or if you have a surviving spouse, no children, and a living parent (some states dictate that your surviving spouse split your estate with your living parent in this scenario); or even if your surviving spouse has children who are not your children (some states have complicated formulas for who gets what in this case).
What Assets Are Subject to Probate?
As a general rule, assets owned solely in the name of the person who passed are subject to probate.
Conversely, assets with title designated as “joint tenants with right of survivorship” are not subject to probate and pass by operation of law to the surviving joint owner. Also, typically, assets with a “transfer on death” or “pay on death” designation, such as life insurance and retirement accounts, are not subject to probate and pass by operation of law to the designated person.
My Loved One Had a Trust… Will We Need to Go Through Probate?
In most cases if your loved one left a trust as the cornerstone of their estate plan, then no, you do not need to go through probate.
However, there is one big caveat here: The deceased must have ensured that all of his or her assets were properly titled in the name of the trust or properly named the trust as beneficiary in order to completely avoid probate.
Unfortunately, not all estate planning attorneys who draft a trust for their clients ensure that assets are properly owned and beneficiaries are properly designated.