What is Probate

What is Probate?

Probate is the legal process that takes place after someone passes away. It’s how a person’s debts are handled, their assets are accounted for, and what’s left is passed along to the rightful heirs or beneficiaries. If there’s a will, the court usually verifies that it’s valid and then appoints someone—often called an executor—to manage the estate until everything is sorted out and any taxes are paid. Not every situation requires probate, though. For example, if all of a person’s assets were held in a trust, the process might be avoided entirely—but it’s always best to check with an attorney to be sure.

What is the Probate Process?

 In general:

•  If there is a will, it is submitted to the probate court.
•  A notice of Petition for Probate is published, and an Executor/Personal Representative is appointed.
•  The Executor/Personal Representative then files a formal petition with the court to administer the decedent’s estate.
•  Creditors may make claims against the estate.
•  The Executor/Personal Representative identifies and gathers assets of the estate.
•  The Executor/Personal Representatives secure and maintain assets.
•  The Executor/Personal Representatives liquidates assets when necessary.
•  The Executor/Personal Representatives file final tax return(s).
•  The Executor/Personal Representatives file final paperwork with the court detailing expenses and debts paid.
•  The Executor/Personal Representatives file paperwork with the court detailing assets received and disbursed.
•  The Executor/Personal Representatives file paperwork with the court detailing how estate funds were used.
•  Once approved by the court, the Executor/Personal Representatives distribute balance of estate to beneficiaries and heirs.

When there is no will (Intestate)

•  An administrator will be appointed by the court. Usually an adult child(ren), or domestic partner of the deceased.
•  The administrator acts as a personal representative or executor.
•  The administrator is to identify heirs.
•  The administrator is to locate and value assets and debts.
•  The administrator is to distribute assets.

Do I need a Probate lawyer?

• Legal requirements may vary from state to state.  I always recommend consulting with an attorney, financial, and tax advisor.
• It is important to realize that a missed deadline or failing to follow proper procedures or paperwork can result in an Executor or Personal Representative being personally liable for mistakes or debts.

General Duties of an Executer / Personal Representative

• Create and maintain an inventory of the assets of the estate.
•  Determining which assets may or may not fall under probate purview.
•  Receiving payments due to the estate.
•  Opening an estate checking account.
•  Have assets appraised or valued.
•  Determining who will receive items / assets from the estate.
•  Giving notice to potential creditors.
•  Investigating claims made against the estate.
•  Paying outstanding estate debts and claims.
•  Paying expenses to administer / maintain the estate.
•  Handling paperwork including notifying Social Security of the death, filing court documents, and discontinuing utilities when necessary.
•  Distributing property and assets to beneficiaries.
•  Filing final tax return(s).

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