What is the Probate Process?

by | Sep 25, 2015 | Business Litigation

When someone is deceased and has final debts, it has to be settled through a legal process known as probate. The property title is also passed on to heirs or beneficiaries of the deceased through probate. There are many disagreements when it comes to probate and its ultimate worth in an estate plan. If you are new to probate, you will find an overview of the process below.

In the Beginning…

The probate process begins in the county where the decease resided at the time of death. Someone will act on behalf of the deceased, but the person must come forward with an original will. This person is typically the one named as executor in the will and is usually someone chosen by the deceased prior to death. If no will exists, then someone must request that the court be the appointed administrator, performing the same function.

Be advised that…More than likely, the executor of the will is an adult child or surviving spouse. If a dispute arises over who should be the administrator, then the court will step in, appointing someone neutral, unbiased and fair. For this person’s service, an hourly payment will be awarded and taken from the estate finances.

Who are the Administrator and Executor? What is the Difference?

The administrator and executor have basically the same legal rights and obligations. Both will become the personal representative of the deceased. The authority of these personal representatives only covers the probate estate. The probate estate is clarified as probate property subject to the rules of the court. Property that is not in the jurisdiction of the court will then be subject to ancillary probate, which means it will be decided in another jurisdiction.

Be aware that…Neither the executor nor administrator has any control over disposed assets outside of probate.

The executor of the will is obligated to file court documents for an Appointment of Executor and Petition for Probate of Will. This can be done with the help of an experienced probate attorney. The court will request a copy of the death certificate in order to proceed.

If There is a Will, there is a Way…

The executor will receive a set date to appear in court before the judge. The will has to be presented and the executor has to ask the court for formal appointment. Once the authenticity of the will is validated, the court will issue a probate order to admit and record the will into court documents, which then becomes public record.

The Fundamental Steps

The basic steps for probate proceedings once the executor or administrator is appointed are as follows:

  • Collect information and inventory of assets
  • Appraise probate assets
  • Pay debts, which includes funeral expenses, taxes, creditors and estate expenses
  • Formally transfer estate property as the will instructors or as the state laws dictate

When all expenses are paid and the waiting period has expired, the remaining amount is shared amongst beneficiaries or heirs.

The probate process can be quite intimidating, challenging, conflicting and controversial. That is why you need a probate attorney to help you get through the process. Contact Feaman Law Firm today to discuss all your options.

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