Probate can sound like a terrifying word and an even more terrifying process. However, it does not have to be. You can easily navigate the process when you understand the ins and outs of it. In fact, the probate process can consist of as little as four steps, so there is no need to overcomplicate it in your mind.
Probate is a common word for the process of administering a decedent’s estate. In other words, it is the process of proving the validity of a last will and testament before the estate can be administered as indicated in the will.
When someone passes away, if they have a will in place and they have property that is subject to probate, the probate process will then formally begin. The first step of the process occurs when the executor—who is listed in the last will and testament by the deceased individual before passing—presents the will for probate in court. This must happen in the probate court in the county where the deceased individual lived or where they owned property.
There are some situations where there is no will in place. This can seem like an especially daunting task because there is no course of action put in front of you by the deceased individual; however, there is a process in place for this with the court system.
The court will not know that they need to act, so the first step in this situation is to ask the court to appoint someone, or yourself, as the administrator for the estate. More often than not, the court will appoint someone close to the deceased individual such as a spouse or an adult child. The court will choose who they see to be the best fit for the situation and who knew the deceased well enough to attempt to keep their best interests in mind through the process.
Once the court has appointed someone as the executor or the administrator of the estate, they officially become the legal representative of the estate and can begin the process of probate for the estate.
Not all assets from an individual’s estate need to go through probate. Some things that should not have to go through probate include:
Some items that usually always go through probate include:
Once you have an idea of the assets that need to go through probate, you will have a better understanding of what will and should be examined in the process.
There are four main steps that you should take in order to get probate started as well as the process for probate in court. The main steps are as follows:
Once you have completed these steps, you will be done with the probate process and can continue to disperse the estate as outlined in the will and by the court.
The first step in this process is filing a petition with the probate court. When you file this petition with the court, you will either submit the will to probate and appoint the executor of the estate or, in the case of not having a will, you will appoint an administrator of the estate.
In addition to filing this petition to the probate court, you will need to provide a notice of the court hearing for the petition to all of the heirs and beneficiaries of the deceased party. This is something that you should already know as a related party of the deceased, but you should also take a look at any of the accounts they may have for any surprise beneficiaries if this is not listed in a will. You should provide this notice to everyone because if an heir or a beneficiary objects to the petition, they will have the proper opportunity to say so in court.
In many areas, the notice of the hearing is also published in a local newspaper or other local media outlet. This is done so that every effort can be made to attempt to notify others that the process for probate is beginning. Most likely, all heirs and beneficiaries will be included already; however, unknown creditors may be looking for that information, so it is a good way to get the public record updated in the community.
Once the first court proceeding has happened, an executor or an administrator of the estate will be officially put into place. Once someone is in this position, they will be required to provide written notice to all of the creditors of the estate. State laws do dictate how and when this should be done, so it is a good idea to follow up with the court to determine the legal way to go about this step in the process. As part of the notice, any creditor that wishes to make a claim on the assets of the estate will have a set time limit in which they can do so. The time limit that they have to make a claim is also something that is determined by state law, so include the proper time frame for the creditors in the notice based on the laws in your state.
At the same time that you are sending out these notices, also make sure that you take time to determine the inventory of the probate property in the estate. Take inventory of:
Of course, this is not a complete list, so make sure you take a look into every aspect of the decedent's life to make sure that everything is captured. In some states, there is a court-appointed appraiser that is in place to value all of the assets. If this is not the case in your state, make sure that you have a professional value everything that you have listed in the inventory. You may also want to get an independent appraiser that you can hire from the estate to appraise any non-cash assets even if there is a court-appointed appraiser for the estate.
Once the time has passed that creditors can come forward with a claim on the estate, a representative from the estate will need to determine what is legitimate and what is not. Anything that is considered to be legitimate should be paid for from the estate. However, that is not the only thing that you should pay for using the estate. You should also make sure you pay for things like any funeral expenses and other final bills that are due, and even things such as water, electricity, or a cable bill. If needed, you may have the approval to sell some estate assets in order to take care of any of these bills so that there are no outstanding payments due before anything is disbursed to any heirs or beneficiaries.
Now that all of the outstanding bills and debts have been paid for by the estate and the period for anyone coming forward with any claims on the estate has passed, you can begin the final step in the process. At this point, petition the court for the authority to make the transfer for any remaining assets in the estate. If there is a will in place, you will distribute anything based on what was directed in the will. If there is no will in place, you will need to disburse everything based on the state intestate succession laws. These laws can vary from state to state, so check with your state laws to see how this should be done if there is no will to go by.
There may also be some other final steps to work through based on what is indicated in the will. For example, there may be a need to create a testamentary trust for a minor, someone who is incapacitated, or for any other reason indicated by the will. If this is the case, you will not be able to distribute anything directly to this individual and will need to actually make sure a trust is set up and then transfer the asset or property to the trustee that has been put in place by the deceased. All of the information that will be needed to execute this should be listed in the will.
Lastly, as part of this process, you should include an accounting of how the assets were managed during this entire process. This may not be a requirement if all of the beneficiaries or the estate waive the requirement; however, this can only be done in certain states. If you want to consider this option, check with state laws before taking any action. Once you have completed this petition, with or without the accounting of the assets, you can then start to create the new deeds for the property, liquidate any assets, transfer property, and transfer any other assets to the right individual.
This entire process is one that is made easier by having a last will and testament in place. This is something that you should consider if you do have any property that will need to go through probate in the case of your untimely death. By taking the time to put this in place before you pass, you can save your loved ones a lot of stress and confusion. To put it simply, having a will in place will actually simplify the probate process because all of your assets, debts, and anything else needed for the process will be recorded for you and your loved ones. It will also make the probate process go a little faster for them as well.
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