When is it necessary to probate an estate?
Probate is the process of transferring property and ownership after someone has died. Whether an estate has to be probated depends on how the decedent’s (the person who has died) property is titled (owned) when they die. Some property may not be part of the probate estate because it passes directly to another person by law. Examples of this include when some or all of a decedent’s property is:
- Jointly held property where there is a right of survivorship (where the surviving joint owner is automatically entitled to the property)
- Proceeds from a life insurance policy, bank or retirement account that names a beneficiary.
- Property that's held in a trust created by the decedent
Typically, you have to probate the decedent’s estate if you need to:
- Find out if the decedent's will is valid
- Change the title (ownership) of real estate or personal property, such as bank accounts, stocks, or bonds, that is only in the decedent’s name without any right of survivorship
- Pay the decedent's creditors
- Get the decedent’s medical records
- File the decedent’s tax returns and pay taxes
Who can be appointed as personal representative of an estate?
In most cases, the court appoints a person called a personal representative to collect, manage, and transfer estate property to the devisees or heirs. If the decedent left a will, the court decides if the decedent’s will is valid. A qualified person with legal priority has the right to be appointed as personal representative of the estate over anyone else.
- If the decedent died with a will — The person with legal priority is the person named in the will to serve as personal representative or executor.
- If the decedent died without a will — The person with legal priority is the surviving spouse. If the decedent wasn't married when they died, the decedent’s heirs have legal priority.
Is there a deadline to probate an estate?
The general rule is that an estate has to be probated within 3 years of when the decedent died. However, this deadline doesn't apply to:
- A voluntary administration
- Determining heirs
- An ancillary (additional) probate proceeding
If the decedent died on or after March 31, 2012, and no proceedings were filed within 3 years of the date of death, you can file a late and limited formal probate. In some cases, you may be able to file a voluntary administration if you meet the voluntary administration criteria.