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Probate

 

PROBATE 

When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed. 

 

If your loved-one owned his or her assets through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased. 

 

The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.

 

Every probate estate is unique, but most involve the following steps:

 

  1. Filing of a petition with the proper probate court.

  2. Notice to heirs under the Will or to statutory heirs (if no Will exists).

  3. Petition to appoint Executor (in the case of a Will) or Administrator for the estate.

  4. Inventory and appraisal of estate assets by Executor/Administrator.

  5. Payment of estate debt to rightful creditors.

  6. Sale of estate assets.

  7. Payment of estate taxes, if applicable.

  8. Final distribution of assets to heirs.

If you have been named as the Personal Representative (Executor) in a will or you have a family member who has died without a will, I can help guide you through each step of the probate process and help make a stressful and difficult situation a bit easier. 

 

Typically, attorney fees are paid for by the estate, rather than the Personal Representative (Executor).  I tailor my services to meet the level of support desired and needed to help hold down costs.

How lengthy the probate process is depends upon the type and size of the estate’s assets, how well the estate planning was performed, and whether any heirs challenge the will. 

 

Some estates can be administered by utilizing the Small Estate Affidavit procedure.  This is a simple process that I can help you with.

 

FREQUENTLY ASKED QUESTIONS

What happens if someone objects to the Will?

An objection to a Will, also known as a “Will contest” is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate.

 

In order to contest a Will, one has to have legal “standing” to raise objections. This usually occurs when, for example children are to receive disproportionate shares under the Will, or when distribution schemes change from a prior Will to a later Will. 

 

In addition to disputes over the tangible distributions, Will contests can be a quarrel over the person designated to serve as Executor.

 

Does probate administer all property of the deceased?

Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries.

 

Certain types of assets are what is called “non-probate assets” do not go through probate. These include:

  1. Property in which you own title as “joint tenants with right of survivorship”. Such property passes to the co-owners by operation of law and do not go through probate.

  2. Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.

  3. Life insurance policies.

  4. Bank accounts with “pay on death” (POD) designations or “in trust for” designations.

  5. Property owned by a living trust. Legal title to such property passes to successor trustees without having to go through probate.