The death of a loved one is a difficult and emotional time. In addition to the grief and sadness, there’s the reality of having to figure out what happens next. And, what happens to the estate and assets left behind?
This is where the probate process comes in.
However, it’s not unusual to feel intimidated or confused about what probate is and how it works. There’s a lot to know!
Below are common probate questions (and answers!) to help you navigate through and understand the probate and estate administration process.1. What is probate?
Probate is a legal and administrative process of settling an estate that takes place after someone passes away. Its purpose is to prove the validity of a Will, ensure the property and possessions of the deceased are distributed to the correct people, and that any taxes or debts owed are paid in full.
A summary of the main steps of probate are:
- Apply for administration or probate of Will
- Take possession of the decedent’s property
- Record real estate
- File an inventory of the estate
- Pay expenses and claims
- File estate tax returns
- Prepare a final accounting
For a comprehensive overview of the steps in the probate process, read here.3. What is the Connecticut probate court’s role?
The Connecticut Probate Court serves to ensure that:
- The decedent's true Last Will and Testament (if there was a Will), was not a forged or revoked version
- The decedent's assets are safeguarded and protected from waste, theft, or neglect
- Only valid bills and debts are paid, including death and inheritance taxes, if any
- What remains in the estate after the payment of debts, expenses and taxes is distributed to the intended beneficiaries in accordance with the decedent's valid Last Will and Testament
The primary duty of the executor appointed in a Will is to administer the estate after death. The executor works under the supervision of the probate court and settles an estate according to the instructions in the Will.
For a more detailed review of the steps required by an executor, read here.5. What if there is no Will?
If the decedent died without a valid Will, the court will appoint an administrator of the estate and the estate will pass in accordance with what Connecticut law provides instead of in accordance with the decedent's wishes.6. How do I know if probate is required?
Probate IS required if…
- A probate estate occurs when the decedent owns individually-held property without a beneficiary designation that exceeds $40,000 or the decedent has a sole interest in real property of any value.
Probate is NOT required if….
- If the decedent's assets are all non-probate, meaning that he or she has a fully-funded revocable trust (commonly referred to as a "living trust"), or assets that are held in survivorship or have a beneficiary designated, no full probate administration is required.
- In Connecticut, if the decedent’s solely-owned assets include no real property and are valued at less than $40,000 – which is the state’s “small estates limit” – then the estate can be settled without full probate. But some additional probate forms concerning the decedent’s assets and debts, will need to be filed.
Read on to learn about when probate is required…7. What assets do not have to go through probate?
In addition to the small estates exclusion, there are certain types of assets that pass to heirs without having to go through probate:
- Assets with Joint Tenancy: When one of two joint tenants dies, the property passes automatically to the surviving tenant under “right of survivorship.”
- Assets with Designated Beneficiaries: Some personal property items or accounts pass directly to named beneficiaries without having to go through probate. This category of assets includes life insurance policies, retirement accounts, and certain bank or brokerage accounts that are either payable or transferable upon death.
- Assets Held in a Living Trust: Placing assets in a living trust ensures that they are not counted as part of the probate estate and therefore do not have to go through probate, but can be distributed upon the Grantor’s death as directed by the trust. This does NOT mean that they are not part of the gross taxable estate, subject to state or federal estate tax.
- Create and fund a revocable living trust
- Establish joint bank accounts, payable on death (POD) accounts or transfer on death (TOD) accounts
No. An estate tax return is required by law for all Connecticut estates, regardless of whether probate is required. The estate tax return also serves to release the liens which are automatically placed on the decedent’s real property upon his or her death.10. How much does probate cost? Are fees avoidable?
Current Connecticut probate fees can be found here.
Most costs incurred in probate (accountant, lawyer or appraiser fees) result from tax issues that arise regardless of whether or not your assets avoid probate or whether or not a living trust is used.
In addition, the probate court’s fee is unavoidable as it’s required by law to levy on a decedent’s taxable estate. (Note: People who use living trusts have taxable estates as well and will have to pay a probate fee even though their assets pass outside of probate!)
However, there are circumstances that can increases probate costs. These include if the beneficiaries and/or heirs contest anything, if the executor or administrator is not particularly trustworthy, or if the decedent left an ambiguous or inconsistent disposition of property.11. How long does probate take?
The length of probate varies depending on complexity. If there’s a Will that is uncontested and the estate is modest, the average probate process can take a year or less.
But if there isn’t a Will, the process could take longer – especially if the estate is complex or the estate documents are incomplete. In that case, probate could potentially take several years.12. Do I need an attorney to handle probate?
It is prudent to obtain competent legal counsel – even for a modest estate. In addition to assisting with a variety of administrative and financial tasks associated with estate administration, a probate attorney can assist with family and beneficiary issues that may arise (including probate litigation matters), handling a complex estate, inheritance, and /or income tax issues, and identify and secure assets.
If you need help with the probate process and settling a loved one estate, contact us. We’re here to help!
Looking for more information? Check out the articles below.
- How to Avoid Probate and Make Sure Your Kids Get What You Leave Them
- ADR – A Way to Keep Things Private in Probate Litigation
- 6 Steps to Get Through the Probate Process
- Choosing the Right Executor or Trustee
- Probate Isn't That Bad