The passing of a loved one is a sad and emotional time. It can be made harder by figuring out how to handle the legal side of distributing a loved one’s property. Sometimes, a will was drafted telling the family and close friends how the property should be handled. Other times, the property must be distributed through intestacy, which requires the probate process.
What is probate?
Probate is the court’s process for managing and distributing a person’s property after they pass. When a loved one has a will but does not have a trust, their will can be challenged for validity. Issues can also occur if there are multiple conflicting wills or signed notes regarding the division of property. This requires the estate to go through probate.
In Pennsylvania, if the estate in question has a gross value of less than $50,000, there is a simplified probate procedure that the heirs may use. This amount does not include property, certain funds the beneficiaries can collect outside of probate, and anything used towards funeral costs. The gross value only takes into consideration what a person’s property is worth. It does not factor in any debts against that property.
Do I need an attorney for an estate in probate?
An attorney is not required in probate, but an experienced probate attorney help make the process easier during a time of grief. A skilled probate attorney is trained in the probate process, knows the court system, can easily help a petitioner complete the required forms, and advocate on their client's behalf until the estate is distributed.
How long does the probate process take?
Typically, the probate process can take months and sometimes up to a year; however, the amount of time will vary depending on how complex the estate is and whether special circumstances arise during the probate process.
What property is in the probate estate?
A person’s estate generally includes all of the property he or she owned or had an interest in at the time of passing. But, the probate estate is made up of only the property a person owned “directly.” Directly owned property is property the deceased has title to. Property not owned directly can pass to someone (usually a spouse, domestic partner, or another beneficiary) more or less automatically and outside of probate.
These types of indirect or non-probate property include property held in joint tenancy or community property with right of survivorship, such as a home; living trusts; insurance proceeds; and employment benefits paid to a spouse or beneficiary.
How is the probate process started?
The probate process begins when the named executor in the will file the will of the deceased with the Register of Wills in the county that the deceased lived. If a will does not exist and an executor is not named, then a spouse or child typically will petition and serve as the personal representative to administer the estate.
The personal representative will then file a petition requesting the probate court, also known as the "orphan's court" to begin a probate case. Your probate attorney will assist you in completing and filing the forms in order to be appointed a personal representative and to open a probate case.
Who takes care of the property in probate?
Once the proper forms are filed with the court, a personal representative is named whose job it is to process the probate estate. To do this, the personal representative will collect the property in the estate for safe keeping and appraisal. He or she will pay the deceased’s debts and liabilities, such as taxes, that were owed at the time of passing.
The taxes that are imposed on a deceased estate include inheritance tax and possibly federal estate tax.
Pennsylvania does not require an estate tax. The inheritance tax is imposed on anyone that inherits from the deceased estate, except a surviving spouse or a charitable organization, and is due within nine months after the deceased's death. The federal estate tax is due, as of 2018, if the estate exceeds $11.2 million. However, only 0.3% of estates in the United States qualified for federal estate tax.
Understanding the process
The distribution of property can only begin after paying off all debts and taxes. When the estate is settled and the heirs and/or benefices are known, the administrator will submit a final accounting to the court. This will show the assets that were in the estate, how the assets were managed during probate and how the assets were distributed.
The probate process is complex and can be confusing, especially when an individual is going through the loss of their loved one. The process becomes more complicated if the will is contested by other family members, or if multiple family members wish to serve as the personal representative. Hiring a probate attorney ensures your interests are protected, your loved one's wishes are followed, and a successful outcome ensues.
Contact us here for more information from Kim A. Bodnar, Attorney at Law or to schedule a consultation in our office in Pittsburgh.
NOTE: This is for informational purposes only and does not constitute legal advice.
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