Comprehending what probate really involves is going to help ease your fears concerning the process, one that is not always as convoluted as you may believe.
Probate is a legal process a will is required to go through to determine its validity prior to anything being allocated to beneficiaries. The testator, the person creating the will, designates an executor in the will whose job is going to be moving the will throughout the probate process. The individuals that inherit from the will are called beneficiaries.
The steps that are involved in the probate process are required to be performed carefully and in a specific order.
Step 1: Filing
Following a will being found, the first step in the probate procedure is to file a petition with probate court asking the will to be probated. The probate petition requests that the executor formally be designated to act on the estate’s behalf.
Each heir and beneficiary is required to be notified that the petition has been filed. This enables them to protest the petition and dispute the will. In many states, the notification of the petition needs to also be published in a newspaper of record so that possible creditors may receive notice.
When there isn’t a will, a petition will be filed pursuing control of the estate, and a notice of administration is required to be given to every legal heir. The individual filing the petition asks that the court designate them as the estate’s personal representative, an action similar to that of an executor.
Step 2: Determining Assets and Debts
Following the court designating the executor or personal representative, they need to determine and disclose each of the estate’s assets and offer an assessment. Assets comprise of real estate, vehicles, holdings, financial institution accounts, capital, personal belongings, intellectual properties, and pets.
The executor seizes legal control of those assets. At the same time, assets in the possession of a trust, like a living trust, aren’t probate assets and aren’t allocated by the probate court.
As executor or personal representative, they are required to give notice to every known creditor of the estate proceedings. Creditors have a particular time frame which they need to file their claims towards the estate. Every known debt should be identified and disclosed to the court.
Step 3: Payment of Debts
As executor or personal representative, they are required to pay each of the estate’s debts using the estate’s assets. In addition to pre-existing debts like loans, house mortgages, utility bills, and/or credit cards, a last tax return is required to be filed for the estate, and any taxes that are due are required to be paid. Funeral expenses are also required to be paid.
When there isn’t enough money readily available to pay off creditors, the executor or personal representative is allowed sell the estate’s assets to acquire the capital required to pay off the debts.
Step 4: Allocation of Assets
After all the creditors were paid, the executor or personal representative allocates the left over assets in accordance to the testator’s wishes when there is a will, or in accordance to state intestacy statutes when there isn’t a will. This might require formal ownership transfers through deeds or titles for things such as actual property and vehicles.
When the will has a requirement of establishing a trust, the executor needs set one up in accordance to the directions included in the will. A last accounting of the estate needs to be presented to the court, specifying all the assets and debts and in what way the property was allocated.
The whole probate process could take from a few months to a year or longer, subject to the estate’s convolution and the court’s schedule. Successfully concluding an estate using probate requires an attention to detail and a meticulous approach to the steps needed.
- Sember, B. (2020, December 23). The probate process: Four simple steps. Retrieved March 16, 2021, from https://www.legalzoom.com/articles/the-probate-process-four-simple-steps
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