There are many ways one can avoid the time and expense of Probate with proper Estate Planning. However, what happens if a loved one did not take the care to set up their estate with the measures available to avoid Probate?
The Probate process doesn’t have to be feared, and with a good attorney, this process should be fairly painless.
Probate can be defined simply as: proving a Will as valid in a Probate Court. Probate is the process of administering a decedent’s estate after the decedent has passed away. Many people are afraid of the process simply because they don’t have a solid understanding of Probate.
Probate begins with the death of a loved one, and is filed either formally or informally. Most personal representatives choose to file a Probate informally, because it is less complicated and less expensive. What happens next?
A personal representative, most likely selected by the Decedent in their Will, must be appointed by the Court and given Letters of Appointment. These Letters are the official papers that give the personal representative the power to administer the decedent’s estate.
The personal representative must notify parties that may have an interest in the decedent’s estate. These interested parties may be other heirs and/or creditors of the estate. The personal representative must send notice to the heirs at their last known address. Creditors of the estate are notified by publication in a paper of general circulation. Once the creditors of the estate have been notified, they have three months in which to file their claims, or they are forever barred.
The personal representative must take an inventory of the decedent’s assets at the time of death. This includes –but is not limited to— bank accounts, real estate, personal property, vehicles, life insurance policies, stocks, bonds, mortgages, and debts. These assets and debts are listed on a document which is then filed with the court.
This step, while straight forward, can take a lot of time depending on what is involved in order for the personal representative to distribute the property. The personal representative will deliver property that has been willed to specific devises. Any assets not distributed may be sold at an estate sale. The proceeds from such sales become part of the estate, and are deposited into an estate account. Property is either transferred to heirs or sold.
The final accounting is a list of what has come into the estate as income, what has been paid out of the estate as bills and debts, and the assets that have been distributed. Assets that have yet to be distributed are also listed on the final accounting. This document informs the court of the actions that have taken place during the administration of the estate.
An informal Probate is simply closed by filing the personal representative’s sworn statement with the court. The Probate process takes a minimum of 6 months to be complete.
There are many nuances of Probate, and no two are the same. However, knowing the basics of Probate and understanding the process is the first step to having a positive Probate experience.