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Probate Lawyer

You may be left with the responsibility of handling and managing a loved one’s estate. You may be the executor of their will or the heir who is supposed to take charge of the estate. In any case, the first step you need to take is to get the will or trust that the deceased might have prepared. If there is no will or trust, you do not need to panic as the process of managing the estate will remain the same. In case the deceased has left a will or has not used any estate management tool, you will have to go through the process of probate to get the estate. Because probate laws vary from state to state and can involve numerous complexities, it is always a great idea to consult and hire a probate attorney to help you with the case.

What is Probate?

Probate is a legal process that is executed upon the death of a person to manage and distribute their asset. The following tasks are conducted during the probate process:

  • The will of the deceased is recognized and verified for validity
  • An executor or administrator is hired according to the will to manage the estate and distribute it to the intended beneficiaries
  • The estate of the deceased is identified
  • The value of the identified estate is appraised
  • Taxes and debts of the deceased are paid
  • The remaining assets and property are distributed to the beneficiaries stated in the will or according to the state law in case the deceased died intestate (without a will)

The requirements to initiate probate vary from state to state. Typically, these legal requirements are included in the estate probated codes and the intestate succession laws for the state in case someone dies without a will.

Overcoming the Probate Avoidance Fear

Probate is largely feared by the general population because it is perceived to be arduous and expensive. However, that is not true. The basic task of appraising and administering the assets needs to be done whether the estate is managed by an executor in probate or the assets are jointly owned or transferred to a living trust during the deceased’s lifetime. Besides this, many states have taken the initiative of simplifying the probate process over the years. In these states, there is no reason to avoid or minimize probate. Some instances that can make the execution of any estate management tool difficult are family disputes and lawsuits by heirs. In addition to this, there are types of property under the estate that can pass to the beneficiaries outside the probate. Thus, the process is not something to be scared of or avoided.

Different Types of Probate Proceedings

The types of probate proceedings allowed vary from state to state. Some of the common types of probate proceedings allowed across most states in the US are:

Formal Probate

This type of probate is used when complex estates are involved and the intervention of a judge is required to make determinations. The proceedings for formal probate commence when an interested party, somebody who believes they are entitled to receive the assets from a deceased individual’s will, files a petition in the court to open a formal probate administration. The interested party is required to provide the following identification details to open the formal probate proceedings:

  • The interested party is required to provide all the pertinent information regarding themselves including their interest in the estate and the name of their probate attorney
  • Detailed information about the deceased individual including their last known address and the last digits of their Social Security number
  • The answer to whether the estate was required to file a Federal Estate Tax form
  • The approximation of the value of the estate

If the court finds that the identification details match the records, it appoints a representative to oversee the formal probate proceedings. The representative is none other than the executor named in the will. The procedure continues until the debts of the deceased individual are paid and the remaining estate is disbursed to the intended beneficiaries.

Informal Probate

In the case of informal probate, the proceedings are initiate by filing an application with the probate court. In some states, you may be required to appear in person to file the application. The application is then verified by the probate registrar. If the registrar finds that the application is complete, they will issue a probate statement and appoint a representative to oversee the proceedings. The representative can then pay debts, taxes, and administer the estate without the supervision of the court.

Summary Probate

Summary probate proceedings are useful when the value of the estate left behind by the deceased is less than US$75,000 or the individual has been dead for two years or longer. It is a more streamlined process compared to the other probate proceedings.

Like formal probate proceedings, summary probate begins after an interested party files a petition in court. However, unlike formal probate, no representative is appointed to oversee the estate administration. Instead, once when the court determines that the estate qualifies for summary probate it issues an order to transfer the assets to the intended beneficiaries.

Steps in the Probate Proceedings

While the requirements for initiating probate vary from state to state, the process is almost similar and involves the following steps:

Authentication of the Deceased’s Last Will and Testament

In most states, the person in possession of the deceased’s will is mandated by law to submit an application or petition with the probate court as soon as possible. You may be required to submit the death certificate of the deceased along with the will. During this period, people who believe that the will is not properly drafted or are in possession of a more recent will can object to the filing. There is a possibility that someone may object to the personal representative appointed to administer the estate under the will.

The court calls upon witnesses to verify the validity of the will. Many will and testaments include self-proving affidavits that legally reaffirm that the will was signed at the time and place it is claimed to have been. In absence of these affidavits, the court calls upon witnesses to testify or sign a sworn statement to confirm that the will in question is the one they saw the deceased signing.

Appointment of the Personal Representative or Executor

Upon the initiation of the probate proceedings, the court appoints the executor named in the will to oversee the proceedings. The executor is also known as a personal representative and estate administrator. The personal representative receives a document called the letters testamentary from the court. Also referred to as letters of authority or letters of administration, the document allows the personal representative to handle and get into transactions on behalf of the estate.

Posting of Bonds

The personal representative may be mandated to post a bond before handling the transactions on the behalf of the estate. Most will and testaments have the provisions that the state is not necessary. In some states, beneficiaries can elect to unanimously reject the bond requirement.

Accounting the Deceased Assets

The first task that the executor undertakes is to locate, account, and determine the value of the decedent’s assets. This is done to protect the assets during the probate proceedings. Collecting and accounting of assets can be a time-consuming task. In the case of real estate, the executor is not required to move into the residence to protect the property. But they should ensure that the mortgage payments are taken care of, insurance is renewed, and property taxes are paid. For other assets such as collectibles and vehicles, the executor has the right to move them into a safe location.

After the collection, the executor needs to determine the date of death values of the assets. This is done by analyzing account statements and appraisals. In some states, the court appoints appraisers while in the others the executor can choose someone of their choice.

Notifying and Paying Creditors

It is mandatory for the executor to identify and inform creditors about the decedent’s death. Most states mandate printing about the death in a local newspaper to intimate unknown creditors. The creditors then get a limited window of time to bring their claims for the money they are owed. The exact time frame allowed for creditors to bring forth their claims varies from state to state.

Creditors with valid claims are paid using the estate fund. The estate fund is also used to settle the bills that the decedent may have incurred during the final stages of illness.

Filing Tax Returns

The personal representative will be responsible for filing the decedent’s personal income tax returns for the year they died. The executor will also undertake the responsibility of filing and paying the estate taxes. All the taxes are paid using the decedent’s assets.

Distribution of Estate to the Beneficiaries

When all the steps are taken care of, the personal representative files a petition in the court requesting permission for the distribution of the remaining assets to the beneficiaries named in the will. The permission is granted by the court after the executor submits a detailed accounting of every financial transaction they have engaged in. This requirement can be waived if all the beneficiaries collectively agree to do so.

Intestate Estate

An intestate estate is where the decedent does not leave a will or their will is rejected by the court. In such cases, the assets are distributed to the closest relatives determined by state law.

Why Hire a Probate Attorney for Probate Proceedings?

Hiring a probate attorney can help you in the following ways:

  • Probate proceedings involve filing notices, submitting documents, and communications with various government agencies. With a probate lawyer, you can transfer the burden of responsibilities on them.
  • There are times when you will be directed by courts to review complex documents quickly. A probate attorney can take on the task for you and guide you to taking the next best step
  • With a probate lawyer, the executor can ensure quick disbursement of inheritance
  • If the probate proceedings are executed in an unprofessional manner, it could lead to a rise in disputes. A probate attorney will help you effectively and quickly execute and end probate proceedings and prevent these situations from arising
  • A probate attorney will work in your best interests and minimize stress on your family

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