There is a good chance that you have heard the term “probate” in the past. Even so, this doesn’t mean that you fully understand the process that follows after a loved one passes away.
The American Bar Association does a great job providing a solid definition of probate. The organization defines this as follows:
“Probate is the formal legal process that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to the intended beneficiaries. The laws of each state vary, so it is a good idea to consult an attorney to determine whether a probate proceeding is necessary, whether the fiduciary must be bonded (a requirement that is often waived in the will) and what reports must be prepared. Most probate proceedings are neither expensive nor prolonged, which is contrary to the claims of many vendors selling living trust and other products.”
This definition should give you a basic overview of the probate process. However, it doesn’t go into the finer details, including what you should expect along the way.
Although no two estates are the same, although different courts have a different take on the probate process, there are four basic steps that always come into play. These are as follows:
- File a petition with the probate court. This is done for one of two reasons. Most commonly, this is meant to admit the will to the probate court and appoint the executor. However, in the event that there is no will, the petition is the first step in appointing an administrator of the estate.
During this time, heirs and beneficiaries should also be given notice that the person has passed (if they don’t already know) and that the probate process is underway.
- Give notice to creditors and take inventory. The personal representative is responsible for many things, including giving notice to creditors. From there, creditors are given a certain period of time, outlined by state law, to make a claim.
This is also a time for the personal representative to take inventory of the person’s assets. This can range from simple, in the event that the person didn’t own much, to much more complex.
- Make payments from the estate. Generally speaking, all estate and funeral expenses, along with taxes and debts, are required to be paid from the estate.
Once again, the personal representative is staffed with this responsibility. This person needs to determine which claims and debts are legitimate, and then pay them from the estate.
Note: there are times when the personal representative can get permission from the court to sell assets to satisfy debts.
- Property is transferred to the appropriate person or people. A will outlines “who receives what” upon a person’s death. Once enough time has passed and all debts have been satisfied, it’s time for the property to be distributed to the beneficiaries.
Do You Have Questions?
On the surface, the probate process doesn’t appear to be overly complex. This is true for the most part, but even so you never know what you’ll be faced with as the process moves forward.
It’s natural to have questions, so don’t hesitate to seek answers in a timely manner. By consulting with a probate attorney, you can learn more about the process and where you fit in. Furthermore, this person can answer all your questions, ensuring that you have a better understanding of what you’re doing.
Have you downloaded our free report entitled “Dangers of Do-It-Yourself Wills and Living Trusts.”
By reading this, you’ll gain a clear understanding of why a do-it-yourself will is a mistake. While this sounds like a good idea to many, it could put your family in a bad position when you pass on.
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Read our free report to better understand why it makes sense to hire an estate planning attorney when creating your will or living trust.
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