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What is Probate?

Probate is the court-supervised transfer of property from a deceased person (decedent) to his or her heirs and beneficiaries. Since probate is a court process, there can be many steps involved, and the process can get complicated quickly. The grief and pain at the loss of a loved one, coupled with the external stress of the probate process can be overwhelming.

Read on for more information about the probate process and how our wills and trust planning attorneys can help guide a personal representative.

What is involved in the probate process?

A personal representative (also known as an “executor,” if male, or an “executrix,” if female) is the court appointed individual who handles the affairs of the decedent. A personal representative’s primary duty is are to protect the assets of the estate and interests of the beneficiaries. In order to become a personal representative, a petition to the court is prepared asking the court to appoint the personal representative. Once appointed, the personal representative may begin to administer the estate of the decedent. This may include paying outstanding debts, distributing personal belongings, or managing bank accounts, among many others.

Within a few months of being appointed, a personal representative is required to prepare and file an inventory of the decedent’s estate. The timeframe for this important chore is set by statute. This inventory should detail all of the assets subject to probate (i.e., that did not pass outside of probate by operation of law or otherwise). The property must be valued and even appraised as necessary.

Another major part of the probate process is handling any creditor claims. A personal representative is required to determine all creditors that are reasonably ascertainable. This usually means going through mail, identifying monthly bills, credit card balances, mortgages, and vehicle loans. Proper notices must be given to creditors, which may include entering a publication in the appropriate newspaper and sending written notice to known creditors. Some personal representatives are under the mistaken impression that all debts must be paid. Some states however provide “permissive notice” to unsecured creditors. This may avoid paying some unsecured claims thereby allowing more money to stay in the estate.

Once the above is completed, the personal representative is responsible for filing the tax returns for the decedent and for the estate. While the personal representative is not personally liable to pay the creditors or taxes of the decedent, he or she is responsible for paying creditors and taxes using the estate’s assets.

Overall, the personal representative is responsible for the care and maintenance of the decedent’s assets, treating them with even greater care than his or her own property. The personal representative must take into his or her possession, all assets within the estate and distribute according to the Will, or if no Will exists, then in accordance with the laws and regulations of the state.

It’s okay to ask for help.

As you can see, being a personal representative is a tough job. There can be a lot of stress and pressure placed on the personal representative during probate. For example, if a personal representative is not fulfilling all of these duties, then the court can remove them for failing to protect the decedent’s estate. With the help of our team, a personal representative and beneficiaries can take comfort in the fact that we will guide the personal representative through each step, so that he or she is able to close the estate quickly and efficiently, and without detriment to the estate or the beneficiaries.

What should beneficiaries know about the probate process?

One thing to realize if you are a beneficiary is that the will may be “read” a few days after the funeral, but the gifts and bequests are not given out at that time. Yes, you may be entitled to the assets, but the inheritance is subject to the probate process. The personal representative must settle the decedent’s debts and claims before he or she can make any distribution of the assets. In fact, it is the responsibility of the personal representative to control all of the assets within the estate until the probate process is completed.

All this is not to say that personal representatives do not need to keep beneficiaries informed during the process. The personal representative must keep the beneficiaries in the loop, which includes providing each with notice via certified mail that the will has been admitted to probate, along with a copy of the will if one exists. In addition, the personal representative must inform the beneficiaries regarding any information that might affect their rights. For instance, beneficiaries have the right to ask for a formal accounting at the completion of the probate or the right to request special notice throughout the probate process.