When a person dies, he or she leaves behind an estate that is made up of all assets owned by the decedent at the time of death. Ownership of those assets must eventually be transferred to the beneficiaries and/or heirs of the estate. To ensure that happens in a timely manner, most estates are required to go through the legal process known as probate. Probate also serves to:
- Identify, locate, and value all estate assets
- Notify creditors and allow them the opportunity to file claims
- Make sure all taxes are paid
- Authenticate the decedent’s Will and litigate any challenges to that Will
Most estates are required to go through some type of probate. Small estates with uncomplicated assets may qualify to use an alternative to formal probate which is offered in most states, including Connecticut.
If the decedent left behind a Last Will and Testament the estate is referred to as a “testate” estate whereas if the decedent failed to execute a Will prior to his/her death the estate is known as an “intestate” estate. The primary difference between the two is found in how the estate assets are distributed. In a testate estate, the decedent’s Will determines how the estate’s probate assets are to be distributed. If the decedent dies intestate and is a resident of Connecticut at the time of death, the Connecticut intestate succession laws dictate how the estate assets are distributed. Intestate succession laws usually require the estate assets to be distributed to close relatives only, such as a spouse or children if any survived the decedent and then parents and/or siblings if no spouse and/or children survived the decedent.
Not all assets are probate assets. In fact, one of the first things that must be done following the death of an individual is to determine which property is probate property and which property is non-probate property. Non-probate assets bypasses the probate process and may be distributed right away. Common examples of non-probate assets include:
- Assets held in a trust
- Proceeds of a life insurance policy
- Funds held in accounts designated as “payable on death (POD)” or “transfer on death(TOD)”
- Certain types of jointly held property
- Funds held in certain retirement accounts
If the decedent left behind a Will, the individual appointed as the Executor in that Will is who will oversee the administration of the estate during the probate process. If the decedent died intestate, any competent adult may volunteer to be the Administrator of the estate. If no one volunteers, the court must appoint someone. Ultimately, the court must approve of either an Executor or Administrator. For the most part, the duties and responsibilities of an Executor and Administrator are the same.
Just as every estate is unique, so is the probate process unique for each estate. Nevertheless, there are some common steps in the probate process, including:
- Identifying, securing, and valuing estate assets
- Opening probate in the county where the decedent was a resident at the time of death.
- Identifying and locating heirs if the decedent died intestate.
- Notifying creditors.
- Reviewing creditor claims and approving or denying claims.
- Litigating any claims against the estate.
- Calculating and paying any state and/or federal tax due.
- Transferring the remaining assets to the intended beneficiaries/heirs of the estate.
In most states, any “interested” person (usually beneficiaries, heirs, or even creditors) may contest the validity of the Will submitted for probate. If a Will contest is filed, the challenge must be litigated before probate can resume because the outcome determines whether a Will or the state intestate succession laws will determine how the estate assets are distributed.
The amount of time it takes an estate to get through the probate process depends on several factors, including the type of probate required, the size, value and complexity of the estate, and the skill and efficiency of the Executor/Administrator. In the State of Connecticut, it will take a minimum of about four to five months to probate an estate because creditors have at least three months to file claims against the estate. As a general rule, the larger and more valuable the estate, the longer it takes to probate. In addition, if someone challenges the validity of the decedent’s Last Will and Testament, the ensuing Will contest will prolong the probate process as well.
Probate ties up assets for months, even years. Beneficiaries and heirs must wait until the end of the probate process to receive their intended assets, making the length of the probate process a common reason to avoid the process when possible. In addition, probate can be costly. Everyone involved may be entitled to a fee, including the Executor, attorney, appraisers and accountant. Finally, if you prefer to keep the details of your estate plan private, avoiding probate is an important goal because once your Will is admitted to probate it becomes public record. For these reasons, people often choose to include probate avoidance tools and strategies in their estate plan.
If you have additional questions about the probate process in general, or about the probate of a specific estate, contact the experienced probate lawyers at Nirenstein, Horowitz & Associates, P.C. by calling (860) 548-1000 to schedule an appointment.