When is it necessary to probate an estate?
Whether an estate will have to be probated depends on how the decedent’s property is titled when he or she dies. For example, some or all of a decedent’s property, such as jointly held property where there is a right of survivorship, the proceeds from a life insurance policy or a bank or retirement account that names a beneficiary, may not be part of the probate estate because it passes directly to another person by operation of law. Property that's held in a trust created by the decedent also may not need to be probated.
Typically, it's necessary to probate the decedent’s estate if you need to:
- Establish if the decedent's will is valid
- Change title (ownership) to real estate or to personal property, such as bank accounts, stocks, or bonds, that is held in the decedent’s sole 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, when necessary
Who can be appointed 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 determines if the decedent’s will is valid. A qualified person with legal priority has the right to be appointed personal representative of the estate above all others.
- If the decedent died with a will — The person with 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 priority is the surviving spouse. If the decedent wasn't married at the time of death, the decedent’s heirs have priority for appointment.
What's the deadline to probate an estate?
The general rule is that an estate must be probated within 3 years of the decedent’s date of death. This deadline doesn't apply to a voluntary administration, determination of heirs, or ancillary probate proceeding.