Justia Legal Resources: Probate Law Center

Anyone who loses a loved one shoulders a heavy emotional burden. Unfortunately, probating their estate may impose its own burdens. The Probate Law Center at Justia aims to ease the stress of this process by clarifying what happens.

Approximate Read Time: 4 Minutes

Probate involves managing the assets in the estate of a deceased person and ensuring that they are properly distributed. An executor or administrator of an estate should know how the process works so that they properly fulfill their duties. Meanwhile, an heir of a deceased person also may want to understand the basics of probate so that they can protect their interests if needed. Justia provides a Probate Law Center that can guide executors, heirs, and anyone else involved in the process. Here are some common questions to which this free resource offers general answers.

Who Manages Probate if There Is No Will?

If needed, the probate court will appoint someone to manage the estate. They may be called an administrator or personal representative. Some people who may be considered for this role include any surviving spouse or children, as well as other family members such as parents or siblings. A person who could serve as an administrator also may nominate another person for this role, although the judge will make the final decision.

What Does an Executor Need To Do?

Key duties of an executor include filing the will (if any) with the probate court and gathering and valuing the assets in the estate. Based on this process, they will need to evaluate whether the estate must go through probate. If so, they will file a petition for probate and notify beneficiaries, heirs, and creditors. While probate lasts, the executor will need to manage the assets in the estate and pay debts and taxes from the estate. Eventually, they will distribute the assets among heirs and beneficiaries before closing the estate.

How Do You Prove the Validity of a Will?

To be valid, a will usually must be in writing, created by a testator with legal capacity to make a will, and signed by the testator and witnesses in accordance with state law. (Justia provides a 50-state survey on requirements for wills.) Generally, you can prove the validity of a will in probate court by submitting a self-proving affidavit, which is a sworn statement signed by the testator and the witnesses. Without a self-proving affidavit, or in states that do not allow them, a witness probably will need to submit a notarized statement or testify in court about the validity of the will.

When Might Someone Contest a Will?

A will contest might arise when someone with an interest in the estate or named in the will believes that the testator did not have capacity to make the will. Challenges also might raise arguments of undue influence or fraud, or deficiencies in executing the instrument. A will contest may affect the entire will or only part of it. Some wills contain no-contest clauses that disinherit a beneficiary if they unsuccessfully challenge the will, although these are not always enforceable.

How Are Ambiguities in a Will Resolved?

Sometimes the language of a will could support more than one interpretation. In a will construction action, a court will try to determine what the testator intended. This may involve considering evidence from outside the will, which may take the form of documents or testimony. If the intended meaning of a provision remains unclear, the court will apply “rules of construction” under state law, which are meant to mirror what a typical person in the same situation as the testator probably would have intended.

How Are Assets Distributed if There Is No Will?

If a decedent did not leave a will, their assets will be distributed according to the state rules of intestate succession. These provide formulas for allocating assets to family members, usually prioritizing a spouse and children. Parents and siblings generally will inherit from the estate if no spouse or child survived the decedent. However, assets in a trust or account with certain beneficiaries will pass directly to those beneficiaries if the decedent did not leave a will.

Is an Executor Liable for the Debts of an Estate?

In most cases, an executor is not personally liable for the debts of an estate. There may be some exceptions, such as when the property in the estate lost value because the executor mismanaged it. Also, a surviving spouse will be liable for debts that they incurred with the decedent, and sometimes for debts that the decedent incurred independently, if the assets in the estate cannot cover these debts.

Can a Beneficiary Sue the Executor?

Yes, a beneficiary (or another interested party like a creditor) may be able to sue the executor of the estate for various reasons. These may include an alleged breach of the fiduciary duty owed by the executor to the estate, such as when the executor acts in their self-interest. Litigation also may arise over an accounting of estate assets and debts or the fees charged by the executor. Remedies may involve stopping or undoing the actions of the executor and requiring them to compensate the estate for losses caused by these actions. A court sometimes may even remove the executor.

When Do You Need To Pay Estate Tax?

An estate will owe federal estate tax if the total taxable estate exceeds a certain threshold, adjusted each year. (In 2024, this amount is $13.61 million.) The total taxable estate is found by taking the gross value of the estate, subtracting applicable deductions, and adding the value of lifetime taxable gifts. However, the IRS allows a surviving spouse to add any unused amount of the estate tax exemption for their deceased spouse to their own exemption.

Can You Streamline the Probate Process?

Streamlined procedures may be available for certain estates. The types of assets that an estate contains may affect whether it qualifies for these procedures. Assets that pass outside probate are not counted in calculating whether an estate qualifies. Justia provides a 50-state survey on laws and procedures for small estates, including eligibility requirements and whether a court must get involved.

How Can You Avoid Probate?

Some estates may avoid probate completely if the decedent took advantage of certain tools. These include placing property in a living trust or transferring assets as gifts during the decedent’s life. Beneficiaries of payable-on-death accounts will get the funds directly, as will beneficiaries of life insurance policies, retirement accounts, and pension plans. Property held in joint tenancy will go directly to a surviving co-owner. These are just some examples of ways to avoid probate, which vary by state.

Final Thoughts

Managing or distributing a loved one’s estate can lead to complexity and contention. If you are an executor or beneficiary, you may want to consult a probate lawyer about any particular questions that arise during the process. This can ensure that your loved one’s wishes are honored, while averting potential disputes or financial losses. In the meantime, the Probate Law Center offers a readable overview of some key concepts in this area. Like the other Justia Legal Guides, it furthers our mission of making the law free and accessible to all.

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