Probate is a process of estate settlement in court. It is a process in which a will is proved in a law court to see if they are valid and true enough to be approved and implemented. Probate follows a legal process where your estate plans or last Will is verified in a probate court, before distribution of your assets and properties according to the will.
Probate of Will and Estate Property
When you pass away, your family is faced with the challenge of managing and sharing your assets among themselves. This is a delicate, emotional and trying time, when they will be faced with a lot of decisions to make. Leaving them without a Will–a valid one–will make things even more difficult for them. Probate in itself is the legal process of determining the validity of a will before its contents are carried out. Not all Wills are valid. For instance, a Will valid in one state may be invalid in another state, and this is why you need a probate lawyer.
Last will are always faced with probate before they can be implemented. A will may be contested. When one or more parties feel that the deceased was forced into signing the will, or that they are being cheated out of their inheritance, such party may issue out a petition of contest of will. Thus, increasing the probate process.
In a case where you pass away without a written will, the Surrogate’s court will pass a judgment of estate administration. Estate administration which is backed by laws of intestacy, is done in a case where there is no valid Last Will of the deceased. The estate will then be distributed among the family and relatives according to these intestate laws, and this will see the estate being distributed against the wishes of the beneficiaries. Intestate Laws vary across different states.
Role of the executor or administrator in probate
The testator of a will has to name an executor in the will. Most people prefer appointing a close relative such as an adult child, a sibling, or even a trusted friend, but an executor could be any person or even a financial institution or organization. At the death of the testator, the executor initiates probate by filing a petition to the probate court.
Once you have been appointed as an executor, you are faced with the following tasks:
- Evaluating the estate of the decedent and protecting it by notifying any financial institutions that may be involved with the estate’s income.
- Opening up an account from where you’ll settle estate bills, debts, and taxes.
- Evaluate all estate debts, taxes and expenses and making due payments. You have to determine if the claims of the estate creditors are valid before settling them.
- Keep a well detailed record of all financial transactions completed, including income flow and expenses.
- Preparing and filing the decedent’s final income tax return and estate income tax, if need be.
- Preparing and filing Federal and State estate tax returns if required, as quickly as possible.
Common probate mistakes
If you have been named an executor of an estate plan and about to enter a probate process, avoid these common probate mistakes:
Failure to maintain the estate
One of the most important responsibility of an executioner of an estate is keeping and maintaining the original estate. Failure to keep the estate property owned by the decedent during the probate process could make the will revoke and invalid. As the executor or administrator, you could be held liable should the property fall into despair or gets damaged.
Waiting too long to commence probate process
Implementation of a Will commences once the will maker dies. Obviously, the probate process shouldn’t start just days after losing a loved one, however, waiting too long may prove a costly mistake. Most state have very specific time in which estate administration process should begin. Asides considering the time and stress which the beneficiary of the decedent estate would be subjected too, probate should begin at the appropriate time to avoid incurring additional taxes or penalty cost due to procrastination.
Inaccurate records of estate plans
As an executor or a probate lawyer, you need to be sure that estate plans of the decedent are accurate. Hence, a smooth probate process can be guaranteed. Estate plan document are meant to reflect the right details and assets of the decedent. Once a detail is documented inaccurately, and one or more party decides to contest the will, the probate process would be longer than usual. This mistakes should be avoided by estate lawyer as well as executioner of the estate.