I have been managing this law practice for a few years now, but the "lingo" still intimidates me sometimes!
Usually, once Scott explains it, I can catch on. Probate is a process, but it doesn't have to be overwhelming.
Read on to learn more about probate.
Posted by Lori
Anyone who has had a close friend or relative pass away has probably heard of probate. Probate is the process by which the estate of the deceased is inventoried and distributed according to state laws.
While often maligned as a headache, probate offers a solid legal framework with advantages for those who properly prepare prior to death and who retain skilled legal counsel. Important features of probate that are often overlooked include court oversight, control of creditor claims, and the provision of a legal forum for complaints. Probate is a process, and qualified legal assistance gets you to the finish line more quickly, efficiently and economically.
What is Probate?
Broadly speaking, probate establishes who has the legal authority
to act on behalf of the estate of a deceased person.
Probate usually takes place in one of two pathways. First, if a person dies leaving behind a Last Will and Testament, probate is the legal process of “proving up” a will, or verifying that a will is valid. Alternatively, if the deceased has died "intestate", that is, there is no will. In both of these instances, state law governs the actions taken by those left behind. In the first case, the probate process will verify the existence and validity of the decedent’s will and provide for the appointment of an executor, or personal representative. The executor or personal representative will then file an an inventory of the estate, pay any claims and any taxes due against the estate. Then the executor will "execute" the wishes of the will by managing the distribution of any remaining assets.
If no will is left behind or the will cannot be found, each state has its own laws governing the determination of heirs and the distribution of assets. The probate process will ensure that creditors are paid and distribution takes place according to these laws.
While probate has developed a harsh reputation over the years, this characterization generally applies to people who have not prepared ahead of time for their death, or for those executors who do not have qualified legal assistance. Depending on the complexity of the estate and the thoroughness with which accounting has been carried out before death, probate can either be a relatively simple task or a daunting one. Be aware that no matter the situation, probate may be a lengthy process often taking months or possibly years to play out, and one which may take a considerable amount of an executor’s time.
To summarize the process, probate can be broken into six basic steps:
- Validation of the will or Determination of Heirs
- Appoint executor or administrator
- Inventory estate
- Pay claims against the estate
- Pay taxes
- Distribute remaining assets
In my next post, we will learn more about these steps!
These steps each involve legal documentation and validation, and more importantly, proper accounting each step of the way.
