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The Process of "Probate"

Learn what probate is and how it works

probate court

Many people who hear the word "Probate" conjure up images of a long, extremely complicated process that happens when someone dies. While some probate cases can be that way, a lot of states have taken steps to make the probate process easier and faster. Especially with an attorney's assistance, most people won't have a problem being a personal representative or Executor of an estate. This article will cover the basic steps of the probate process.

Opening the Estate

When a loved one dies, someone, usually the Personal Representative or next of kin, submits the will to the probate court. This is normally done in the county where the deceased person lived.

Once the will is filed, the court will then determine whether the will is valid. The court will then approve the person who was selected as the personal representative in the will. If there is no will, the Court will then appoint someone to be the Personal Representative of the estate. When the Personal Representative is named, the court will issue an order giving that person the authority to act on the estate's behalf.

The Personal Representative will then be able to notify relatives, heirs, and any creditors of the decedent's death, although in most cases the heirs and relatives already know the person has died. To notify any creditors the Personal Representative will contact them by letter and will place a publishing notice of death in the local newspaper.

Assembling the Assets

Next the Personal Representative, will take an inventory of all the decedent's personal property, real estate, investments, etc. From this money all the debts will be paid. There are various professionals who can assist in this important responsibility, including, attorneys, accountants, and appraisers.

It may be necessary to obtain professional appraisals for real estate, jewelry, special collections, etc. Sometimes these assets need to be sold to pay off debts or beneficiaries if it's stated in the will that the beneficiaries are supposed to be paid in cash, and not in another type of property.

Pay Any Taxes

If the estate is subject to Federal or state estate or inheritance taxes those have to be paid before any of the assets are paid to the beneficiaries. The Personal Representative also has to take steps to be sure the income tax return was filed for the year that the person died.

Distribute the Remaining Assets

Once all the creditors and taxes have been paid, and the state mandated waiting period has expired, the Personal Representative will then distribute the remaining assets according to the terms of the Will. If there wasn't a will, the distribution of the assets will be decided by the Probate Court based on the laws of that state.

Property Not Subject to Probate

There are some items in an estate that do not need to go through the probate process and are instead immediately transferred to the beneficiary.

Some common types of non-probate property includes any property that was owned by a married couple and is deemed a "joint tenancy". This property, usually real estate, goes to the surviving joint tenants or spouse.

Conclusion

While the probate process may seem complicated, and in some large estates, it can be, generally the probate process is pretty straight forward.

It's highly recommended that if you are named as Executor or Personal Representative of an estate, that you retain a qualified probate attorney to assist you in this process.

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