What is Probate
Probate is the term for a legal process in which a will is reviewed to determine whether it is valid and authentic. Probate also refers to the general administering of a deceased person’s will or the estate of a deceased person without a will. Probate is a legal process that administers the distribution of a deceased person’s assets. The process is overseen by a probate court. This court has the legal authority to decide matters related to wills and estates.
During probate, the court will determine whether the will is valid. They will also appoint an executor, locate and value assets, and pay the decedent’s debts out of the estate. The residue will then be distributed to the decedent’s beneficiaries and heirs.
Need to File a Probate
Despite the problems of probate, there are several reasons why in some cases probate should not be avoided entirely.
1. Recognizes Guardianship for Minor Children
A will can name guardians to take care of your minor children. A guardianship provision in a trust is not effective. The probate court will almost always honor a designation of guardian in a will. Only in those rare circumstances that the court finds evidence that the person named in the will is not suitable to take care of and raise your children will the court appoint someone else whom it believes is better qualified. If you have minor children, you should have a will that names a guardian and the will should be admitted to probate. This does not mean, however, that your assets must go through probate.
2. Limits Creditor Claims
After the will is admitted to probate, the personal representative will be required to give notice to any creditor you may have at the time of your death. Notice is also published in a newspaper. As soon as the notice is given, the clock starts ticking and the creditors only have a limited period of time during which to contact the personal representative and formally file a claim for payment against the estate. If the creditor does not file the claim within the prescribed time period, its claim is cut off in the future. This time period is called the statute of limitations, a statute that limits the amount of time during which the creditor may file its claim against the estate. If you have only limited known debts, this may not be a problem, but if there are any potential claims against your estate, such as from a business venture, heirs you left out of your will, or unpaid taxes, you may wish to have a probate filed at your death to cut off those claims.
3. Transfers Assets
If probate alternatives are used, including the living trust, there may be some assets that do not get transferred to the trust or that are not covered by a beneficiary designation. Such assets may include last minute inheritances and lawsuit awards. In addition, it is possible that some assets may be mistakenly overlooked and not be transferred to your living trust, or a proper beneficiary designation may not have been made. Your will makes certain that such property goes to the beneficiaries you designate and does not pass pursuant to the will that the state writes for you if you die intestate.
4. Provides Duly Appointed Personal Representative
A will provides a duly appointed personal representative to sign the tax returns and request a discharge of personal liability for payment of federal estate tax.
Steps to Filing a Probate.
Keep in mind that the probate process and timeline will vary depending on the state but, in general, probate law requires these steps.
1. File a petition to begin probate.
You’ll have to file a request in the county where the deceased person lived at the time of their death. The paperwork will ask for you to be officially acknowledged as the legal executor representing the estate. In addition to the petition, you’ll need to file a valid will, if one exists, and the death certificate. Then the court will schedule a hearing to approve the executor. If you’re approved as executor, the court will officially open the probate case and you will now be able to act on behalf of the deceased’s estate.
2. Give notice.
You’ll need to mail a notice that the estate is in probate to all creditors, beneficiaries and heirs (as required by the court). Some states may also require you to publish a notice in the newspaper.
3. Inventory assets.
Collect, inventory and appraise all assets that are subject to probate and present them to the court, such as:
- Bank accounts.
- Retirement accounts.
- Stocks and bonds.
- Real estate.
- Personal effects, such as valuable art collections.
4. Handle bills and debts.
Collect money owed to the estate, such as outstanding paychecks and rents. Also review any outstanding bills and debts and decide whether/how they must be paid. This may require some sleuthing on your part. You might need to go through checkbooks, emails and/or bank account to gather information. You’ll need to ensure the estate’s assets can cover all debts before paying them. If not, the state will prioritize creditor claims.
5. Distribute remaining assets.
With all claims, debts and expenses paid, you’ll give the remaining property to the rightful heirs and/or as the will directs.
6. Close the estate.
Once everything has been distributed, you’ll submit receipts and records of everything to the court and then ask for the estate to be closed – and to be released from the role of executor.
Do you have more questions about Probate? Our attorneys are ready to give you all the help and answers you need. Call us today.
What happens to the debt I leave behind during probate?
Whether you have a will or a trust, any debt you have at the time of your death will need to be settled. If your assets aren’t liquid, creditors could force the sale of your property to get paid.
How does the New York probate process works?
Here it is typically sure that during the first month, the decedent’s will is located and then read to the heirs.
Is probate Rules necessary?
Yes, it is necessary to ensure a proper and we’ll calculated plan on estate planning especially when dealing with estate of a loved one or family.