You are likely to be involved in the probate of an estate at some point, either because you are responsible for administering an estate or because you are a beneficiary, heir, or creditor of an estate. Even if you never find yourself directly involved in the probate of an estate, you should still have a basic understanding of probate so you can make informed decisions when creating your own estate plan. Toward that end, the Owings Mills probate attorney at Gershberg & Associates, LLC have put together the answers to several frequently asked questions about probate. If you have additional questions, or need assistance with the probate of an estate, please feel free to contact our office to schedule an appointment for a consultation.
What is probate?
When a person dies, they typically leave behind an estate consisting of all assets owned by the decedent at the time of death. Probate is the legal process that is required before those assets can be transferred to the intended beneficiaries and/or heirs of the estate.
Is probate always required?
Formal probate is not always required; however, some type of probate is usually necessary. Like most states, Maryland offers a simplified probate for small estates if the estate assets are valued at less than $50,000 (or up to $100,000 if the spouse is the sole heir).
What assets are part of the probate process?
Not all assets are required to go through probate. Determining which assets are probate assets and which assets are non-probate assets is one of the first steps when probating an estate because non-probate assets bypass the probate process and may be distributed to the intended beneficiary immediately. Common examples of non-probate assets include:
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- Assets held in a trust.
- Proceeds of a life insurance policy.
- Certain types of jointly help property.
- Assets held in an account with a “payable on death (POD)” or a “transfer on death (TOD)” designation.
- Certain retirement and pension accounts.
What is the role of a Last Will and Testament during probate?
If the decedent left behind a Will, that Will is submitted to the appropriate Orphan’s Court for probate. The terms of that Will dictate what happens to the decedent’s assets remaining at the end of probate.
What happens if there is no Will?
When someone dies without leaving behind a valid Last Will and Testament, the individual is said to have died “intestate.” Dying intestate does not avoid probate. Instead, the assets in an intestate estate are distributed according to the Maryland intestate succession laws. Usually, this means that only close relatives will inherit from the estate.
Who oversees the probate of an estate?
If the decedent left behind a Will, the individual named as the Executor in the Will oversees the probate process. If the decedent died intestate, the court will appoint a Personal Representative who has effectively the same duties and responsibilities as an Executor.
What are some common steps in the probate process?
Probate is a unique process for every estate; however, there are some common steps, such as:
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- Identifying, locating, securing, and valuing estate assets
- Initiating probate.
- Notifying creditors that probate is underway.
- Reviewing creditor claims and approving or denying each claim.
- Litigating any challenges to the Will or creditor claims.
- Calculating and paying any state and/or federal tax due.
- Transferring the remaining assets to the intended beneficiaries/heirs of the estate.
How long does probate take?
The time it takes to get through the probate of an estate will depend on several factors, including the value and complexity of estate assets, the presence or absence of a Will, litigation during the process, and the effectiveness of the Executor. In Maryland, creditors have six months to file claims against the estate so it will typically take at least eight months to complete the probate process.
What happens if someone challenges the Will?
When the decedent’s Last Will and Testament is submitted to the court for probate, someone may challenge the validity of the Will by filing a Will contest. If a Will contest is filed, the Executor/Personal Representative of the estate must defend the Will throughout the ensuing litigation. Basically, the probate process comes to a halt while the contest is litigated. If the contest is successful, the Will is declared invalid, and the court looks for another valid Will or the estate is probated using the state’s intestate succession rules. If the contestant is unsuccessful, probate resumes using the Will submitted to the court.
Should I hire an attorney if I am responsible for administering an estate?
The probate process can be a lengthy, and complex, process that often requires a certain degree of legal and financial acumen. For this reason alone, people do retain an experienced probate attorney to help them if they are responsible for probating an estate.
Contact Us
For more information, contact the experienced Owings Mills probate attorney at Gershberg & Associates, LLC by calling 410-654-3850 to schedule an appointment.
