Following a person's death, his estate is divided through a process known as probate. In probate, the court will essentially prove the will and determine its validity. If the deceased person (decedent) passed away without a valid will, the probate process is longer and more complicated. Having a valid will helps probate run smoother, and most times, the probate court will follow the wishes indicated in the will. However, in most states, there are time limits for processing a decedent's will with the proper probate court.
Time limits usually begin following the decedent's date of death and vary from state to state. For example, in Montana, the time limit for probate is 3 years following the decedent's death. In Ohio, however, the time limit is much longer at 20 years following the decedent's death. Some states, such as California, have no time limits for filing a will for probate. It is important to check the correct state's estate laws in order to determine such limits. While probating a will may still be possible after the time limit has expired depending on the decedent's state law, the process will likely be more complicated and expensive.
Filing a Will for Probate
Filing a decedent's will for probate is a relatively simple process. First, you will have to file an application with the proper probate court along with an application fee. Second, the court will seek to appoint a personal representative, usually the person named in the will, who will administer all matters of the estate. Third, the pending estate will be published to the general public announcing the will in probate. Finally, if the will is not contested, the appointed personal representative will then carry out all matters according to the will. If a will is contested, hearings and additional time limits will be ordered by the court in order to correctly address the decedent's wishes.
Types of Probate
Types of probate also vary from state to state; however, most states have different probates for small estates, nonprobated wills and large estates involving protective proceedings and trusts. While there are many factors involved, three large factors to determine the type of probate involved are the complexity of the will, amount of assets and type of estate.
Effects on Probate Without a Will
If a decedent dies without a will, the probate process is vastly different. States have different laws regarding how much and what exactly each heir will take of the decedent's estate. Typically, immediate family, such as children and parents, will take a majority of the estate, and the rest will be divided down the line proportionally with extended family.
Estate planning and wills are a specialized area of the law, and the laws vary greatly from state to state. Therefore, it is wise to seek the advice of an attorney who deals in the particular area to assist in the probate process.