When it comes to administering a decedent’s estate, the process commonly referred to as “probate” – many people fear it is daunting and complicated, but it actually can be as simple as four steps.
Probate refers to the process whereby certain of decedent’s debts may be settled and legal title to the decedent’s property is transferred to heirs and beneficiaries. If a decedent had a will, and the decedent had property subject to probate, the probate process begins when the executor, who is nominated by the decedent in the last will, presents the will for probate in a courthouse in the county where the decedent lived or owned property. If there is no will, someone must ask the court to appoint him or her as the administrator of the decedent’s estate. Often this is the spouse or an adult child of the decedent. However, it can be any adult of sound mind. Once appointed by the court, the executor of administrator becomes the legal representative of the estate and has certain responsibilities to the estate and its beneficiaries.
The Four Basic Steps to Probate
1. File a petition and give notice to heirs and/or beneficiaries.
As described above, the probate process begins with the filing of the petition with the probate court to either (1) admit the will to probate and appoint the executor or (2) if there is no will, appoint and administrator of the estate. Generally, notice of the court hearing regarding the petition must be provided to all of the decedent’s heirs and/or beneficiaries. If and heir or beneficiary objects to the petition this gives them the opportunity to do so in court. Also a notice to unknown heirs is published.
2. Following appointment by the court, the personal representative must give notice to all known or unknown creditors of the estate and may be required to take an inventory of the estate property. The personal representative must also notice any unknown heirs of the estate. The personal representative then gives written notice to all creditors of the estate based upon state law; any creditor who wishes to make a claim on assets of the estate must do so within 90 days of first publication of the notice.
An inventory of all decedent’s probate property, including real property, stocks, bonds, business interests, among other assets, may be taken. In some cases a court appointed appraiser may be appointed to the assets. In the alternative an independent appraiser may be hired by the estate to appraise non-cash assets.
3. All estate and funeral expenses, debts and taxes must be paid from the estate.
The personal representative must determine which creditor’s claims are legitimate and pay those and other final bills from the estate. In some instances, the personal representative may be permitted to sell estate assets to satisfy the decedent’s obligations.
4. Personal representative petitions court to accept final accounting and close estate.
Following the waiting period to allow creditors to file claims against the estate, and for unknown heirs to appear, the personal representative petitions the court for the authority to file a final accounting of the estate, pay all outstanding bills owed by the estate, transfer real property owned by the estate and close the estate. The final order of the probate matter will ratify the accounting and all actions taken by the personal representative on behalf of the estate and serve as the document of conveyance of real property from the estate to the heir or beneficiary. In short, a properly drafted will, updated regularly to account for life changes, organized records of debts, personal property and other assets simplifies the process.
To find out more about the probate process or if you need an attorney to probate an estate please contact the office of Michael Yentzen.