What Happens at a Probate Hearing?
The time immediately following the death of a loved one is difficult. In addition to the normal grieving process, other logistical issues need to be dealt with, including commencing the probate process. Most people are intimidated by any court proceeding, but the initial probate hearing is straightforward. Understanding what to expect from the first probate hearing can help relieve stress associated with the probate process and allow litigants to focus on the other, more essential issues related to saying goodbye to a loved friend or family member. When a person dies, their estate must be dispersed, and debts must be paid. The estate must go through probate, which can be a complicated process. If you have recently lost a loved one, you may be anxious about the idea of going to court. It can be helpful to understand probate law, the court process, and what to expect at a court hearing.
What is Probate Court?
Probate court is where the legal process of dealing with the debts and assets of a person who has recently died is handled. These specialized courts ensure the deceased’s obligations are paid, their assets are appropriately distributed to heirs or beneficiaries, and their wishes are carried out legally. The executor or personal representative must file with the county court where the decedent lived for probate to begin.
Once a petition to probate an estate is filed, the court will issue an order setting a hearing. Any interested party will receive notice of the hearing. “Interested party” includes
the personal representative,
any heirs of the deceased,
all creditors, and
anyone named explicitly in the will.
The Court’s Role in Probate
You may wonder why the court gets involved in probate. The court ensures that the will is followed and the decedent’s wishes are honored. If there is no will, the court will ensure that the assets go to the heirs as listed in the state statutes on probate.
Another task of the court is to judge on appeals made by creditors or heirs about their rights to the estate. The executor may deny a claim made by a creditor, but it is up to the court to determine whether it is legitimate or not. An heir may file a lawsuit against the estate regarding the will’s validity. The court will have to review evidence to determine if the choice is valid. In essence, the court acts as overseer and manager of the estate until probate has been completed.
Accordingly, any of these people or the representatives may choose to appear at the probate hearing. The first step taken at the hearing is to take some essential testimony from the proposed personal representative. This testimony typically centers around the information contained in the initial petition requesting that the will be probated.
The First Hearing
At the first hearing, the executor of the estate is chosen. While the will may have named someone to act in that role, the court must approve the decision and give them the powers necessary to act on behalf of the estate.
The court may ask about the relationship between the deceased and the personal representative. The executor or representative may explain why the estate must go through probate. For instance, it may be due to the size of the estate or type of assets.
The court will determine whether to appoint a personal representative. In most cases, it will approve whoever is named in the will. However, the person chosen may not want to act as the personal representative, or other heirs may dispute the choice of executor. In these situations, the court may need to appoint someone else.
If the person is accepted as a personal representative, the court will issue Letters Testamentary, which states that they have the authority to act for the estate. It allows them access to assets and information during the probate process.
The first hearing may be continued if the court needs more information or a dispute about who the executor should be. Depending on the situation and state, the court may require the executor to have a bond to cover any negligence issues to prevent loss to the estate.
Any additional information that will aid the court in deciding on whether it should approve the estate may also be taken, including the identity of the deceased, the relationship between the dead and the proposed personal representative, and the reason the estate needs to be probated. After the judge permits the petition to probate the estate, the court will enter an order that appoints the personal representative to administer the estate.
The Next Steps
Once the hearing has concluded, and the executor has been appointed, they must begin carrying out their duties. They will find and appraise all assets, pay creditors, and file taxes. They may need to liquidate some assets or transfer title to the heirs.
The personal representative or executor will need to publish notice to all parties about the estate. This may include letters to heirs and all known creditors or posting in a local newspaper. The details vary by state, but posting notice is required in some form.
The Second Hearing
Once the personal representative has completed their duties, they will file a Petition for Final Distribution. This petition must be approved with a second hearing. The hearing will happen about 10 to 12 months after the probate is filed. Of course, this depends on the size and complexity of the estate and any issues and delays.
The executor or personal representative will provide what they did, which the judge will review. The judge will ensure all requirements were met within the timelines and that all duties have been performed. Some states require a detailed accounting of where the funds went.
Once the judge has reviewed everything and it is in order, they will sign the petition for distribution. The estate will then be closed.
Does Every Estate Go Through a Probate Hearing?
There are times when an estate may avoid a formal probate process and a hearing. For instance, if the assets of an estate were placed in a trust, probate wouldn’t be necessary.
Another situation is when the estate is small enough to qualify for nonformal probate or a small estate administration. While a hearing might be necessary to appoint the executor, the entire process is usually more informal, and the court doesn’t maintain such strict control over what happens.
When a Will is Disputed
If the will is being disputed, the court will need to hear the evidence as to why the party believes it should be contested. The person will notify the court of their reason to dispute the will. They have only four allowable reasons to contest the will:
Issues with how the will was signed and executed
The mental capacity of the decedent when the will was signed
Fraud & Undue influence
If any of these situations exist, the person has a right to contest the will. However, they will have to prove their case to the court before the choice, or any part will be thrown out. Once the judge has ruled on the contested will, the rest of the probate process can move forward.
The court will then issue Letters Testamentary.
These will allow the personal representative to conduct their duties in probating the estate. The personal representative should obtain a certified copy of the Letters Testamentary to demonstrate the necessary legal authority to handle the estate.
It is important to note that many courts have specific local rules concerning probate hearings. These rules often discuss when and how a probate hearing will be held. However, regardless of local regulations, the fundamental reason and content of the initial probate hearing remain the same.
The court process can be complicated, and if you are trying to probate the will of a loved one, you need an experienced attorney to help you navigate it. We have extensive experience assisting clients with these issues. Contact us today and let us answer your questions about probate. Court hearings in the probate process are necessary for distributing the estate and following the will. They extend the probate timeline because they must get on the court’s docket. However, they won’t seem as imposing or frightening once you understand their purpose.
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Who inherits if no will?
Generally, only spouses, registered domestic partners, and blood relatives inherit under intestate succession laws; unmarried partners, friends, and charities get nothing. If the deceased person was married, the surviving spouse usually gets the largest share. … To find the rules in IRVINE, see Intestate Succession.
I need a probate attorney for a home in the 92650 area, can Irvine Probate Law help?
Yes, our Irvine Probate Attorney will he glad to help you, call now.
Is it illegal to withdraw money from a deceased person’s account?
Remember, it is illegal to withdraw money from an open account of someone who has died unless you are the other person named on a joint account before you have informed the bank of the death and been granted probate. This is the case even if you need to access some of the money to pay for the funeral.
We need a probate attorney in Irvine, 92637. Can your probate attorney help?
Irvine Probate Law would be glad to assist your probate attorney needs.
How do you avoid probate?
Have a small estate. Most states set an exemption level for probate, offering at least an expedited process for what is deemed a small estate. Give away your assets while you’re alive. Establish a living trust. Make accounts payable on death. Own property jointly.
Can Irvine Probate Law help me in the 92623 area?
Irvine Probate Law will happily help probate your property, call us ASAP.
How much does probate cost?
Since probate proceedings can take up to a year or two, the assets are typically “frozen” until the courts decide on the distribution of the property. Probate can easily cost from 3% to 7% or more of the total estate value.
Can Irvine Probate Law help us in the the zip code of 92620?
Irvine Probate Law will gladly help you in the 92620 area of Irvine, CA.
Can a bank release funds without probate? Banks should (and do) have processes in place for releasing funds without a Grant, such as requiring copies of the death certificate, a certified copy of the will, or sight of the executor’s ID. However, this is by no means foolproof. Another concern is the relaxed approach banks seem to take with probate attorneys and law firms.
I have a need for an Irvine Probate Attorney, who is the best?
We firmly believe that Irvine Probate Law is the Top probate law firm, call us today!
How do you know if probate is necessary?
When there is no will. If you don’t have a will, your estate will wind up in probate. When there are problems with existing will. When there are no beneficiaries. When it’s needed to carry out the valid will.
Can Irvine Probate Law help me with a probated property in the 92618 area?
Yes, our Irvine Probate Attorney will be glad to help you!
What happens to bank account when someone dies?
Closing a bank account after someone dies The bank will freeze the account. The executor or administrator will need to ask for the funds to be released at the time it takes to do this will vary depending on the amount of money in the account.
Can Irvine Probate Law help my family with a home in the 92617 zip code?
Yes, Our Irvine Probate Attorney can help you, call us today!
What happens to property when someone dies without relatives?
If no relatives can be found, the entire estate goes to the state. Usually, only spouses, registered domestic partners, and blood relatives can inherit under intestate laws. Unmarried partners, friends, and charities get nothing.
I wish to avoid probate on a property in the 92616 area, do you have a probate attorney that can help?
Irvine Probate Law can definitely help you with avoiding probate.
What happens to bank account when someone dies without beneficiary?
If someone dies without a will, the money in his or her bank account will still pass to the named beneficiary or POD for the account. The executor has to use the funds in the account to pay any of the estate’s creditors and then distributes the money according to local inheritance laws.
I need a probate attorney for a property in 92614, can your probate lawyers help?
Yes, Irvine Probate Law, will be happy to help you probate your properties.
I need the best probate attorney for a home in the 92612 area, can you provide legal assistance?
Yes, Irvine Probate Law will be excited to help you with the probate of your property.
How long do you have to file probate after death?
Each state defines its own filing deadline, but it typically ranges from 30 days to three months. If you don’t have the will but you know who does, you can ask the court to compel that individual to file the will and begin the probate process.