What is a probate?
Everyone has the right and authority to buy, sell, manage and dispose of their own property and financial affairs while they are alive and competent to do so. When a person dies or becomes incapacitated, someone else needs to be given authority to control, manage and distribute the property. This property might include real estate, bank accounts, investment accounts, IRAs and retirement accounts, life insurance, business interests, stock, mutual funds, savings bonds, vehicles, and personal property. A person’s collective property is called his or her estate. Property passing through the probate process is called the probate estate.
Probate is the legal process where authority over the probate estate is passed to someone else under court supervision and control. The person who is given control is called the executor or personal representative. Usually, the personal representative is named in a will. After the court determines that a will is valid, the personal representative is responsible for taking control of the probate estate assets, managing the assets throughout the probate process, notifying and paying any creditors of the decedent, filing income and estate tax returns, and distributing the probate estate as directed by the will or as ordered by the probate court. In Alaska, even a simple probate case can last from eight months to a year. If a decedent owns real estate in more than one state, there will be a separate probate process in each state where real estate is located.
Does all of the decedent’s property pass through probate?
No, not all of the decedent's property and assets will pass through the probate court. Life insurance, annuities, retirement accounts, jointly titled property and property held in trust do not pass through probate. Consequently, these types of assets are not controlled by the decedent's will. The probate process only applies to property titled solely in the name of the decedent at the time of death. This can be a good or bad thing depending upon whether the non-probate property passes to the same people named in the will.
Who inherits if there is no will?
If the decedent did not leave a will, then the probate estate passes to the decedent's relatives in an order prescribed by Alaska law. These laws are called the laws of intestate succession.
Do I need a probate lawyer?
If you are named as the executor or personal representative in a will of a person who passed away, or if you are the closest kin to a person who died without a will, we highly recommend that you talk to a probate lawyer. The probate process and all of the related legal issues do not work well for “do it yourself” legal representation. Mistakes often cost far more than the expense of a probate attorney.
If you are a beneficiary of a will, but have not been named as the personal representative or executor of the decedent’s estate, you will only need an attorney if there is a conflict over the terms of the will or if the personal representative is acting unfairly or not doing his or her job. When in doubt, it's a good idea to call a probate attorney and ask if you need legal representation.
What is the difference between a testate and an intestate estate?
A testate estate is an estate in which the decedent left a valid, unrevoked will. In a testate estate, the estate assets will pass according to the terms of the will. An intestate estate is an estate in which the decedent did not leave a valid will. In an intestate estate, the estate assets will pass according to the laws of intestate succession.
How long does a probate take?
The length of a probate can vary widely and depends on many factors. According to law, however, a probate may take no fewer than 6 months to complete. In general, most probates take anywhere from 6 months to two years, with some taking far longer.