What is probate?
Probate is the process that takes place when a person dies and owns property that does not automatically pass to another person and cannot be disposed of via the Affidavit for Collection of Personal Property. A personal representative, usually an individual named in the decedent’s will, acts under court supervision to transfer legal title of that property to the proper persons.
Transferring property to the proper persons requires the personal representative to complete the following steps:
1. Take control of and manage the probate assets.
2. Notify creditors and heirs or beneficiaries of the decedent’s death.
3. Pay creditors for any outstanding debts.
4. File income and estate tax returns.
5. Distribute the remaining probate estate as directed by the decedent’s will or as ordered by the probate court.
Please note, if the 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, any property or assets that are transferred automatically upon the decedent’s death will not pass through probate and are not controlled by the decedent’s will. Property that is not subject to probate is called non-probate property. Non-probate property includes life insurance, annuities, retirement accounts, jointly titled property with rights of survivorship, and property held in trust.
How do I know if probate is needed?
If the decedent did not own real estate, had less than $100,000 worth of vehicles, and less than $50,000 in personal property, then Alaska law allows for an Affidavit for Collection of Personal Property to be used in place of probate.
If all of the decedent’s property is owned jointly, either with a spouse or another party, and there are survivorship rights that allow the property to pass automatically, probate is not necessary. Determining whether survivorship rights exist can be difficult, and it may be best to consult an attorney on this matter.
If the decedent owned real estate, or personal property in excess of the limits above, and the assets were not held jointly with another or in trust, probate will most likely be necessary.
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 can be complicated and is not conducive to self-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.
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 six months to complete. On average, the probate process will last from six months to two years.