Probate is the legal process of transferring property after one passes. The purpose of which is to collect the property of the deceased, pay certain debts from the estate, and distribute the property as requested when he or she formalized their intentions as to the transfer of their property at the time of their death through a will or trust.
In addition to deciding how assets are distributed, the deceased also usually names a person to be the executor. He or she is given the power to take over the management of affairs upon death. If the decedent fails to do so, then the court will appoint someone to be a personal representative, or administrator, in order to settle the estate. Most often, this either is the surviving spouse or an adult child of the dearly departed.
The executor-to-be will need to file a Petition for Probate of Will and Appointment of Executor. This is done at the probate court clerk’s office. This can be done with or without the assistance of an attorney familiar with probate law. Probate court is a division of the state court system. However, it might be referred to by another name. Bear in mind that the executor will need to show the court a certified copy of the death certificate. Therefore, it is a good idea to order around 10 copies.
Once the death certificate is filed, the court will schedule a hearing that is designed to give interested parties a chance to object to your appointment as executor. Therefore, before the hearing, you will have to send formal legal notice to all of the beneficiaries named in the will and to any heirs under state law. Those are the people who inherit if there is no valid will. You are also required to send notices to any creditors that you know about, and publish a legal notice in a local newspaper. In most cases, the hearing is a formality and you may not even need to show up.
If your loved one left a will, the next step is to prove that it is valid. To do so, all you need is the statement from one or more of the witnesses. It can be delivered as a notarized statement, which is called a self-proving affidavit. This is signed by all witnesses when they saw the will. It can also be a sworn statement signed by a witness now, or the court testimony from a witness.
Probate cases must stay open for several months in order to give creditors a chance to come forward. During that time, the executor can open an account in the name of the estate in order to pay these bills and you cannot give beneficiaries their inheritances until you are sure the estate has enough assets to pay debts and taxes.
When the creditor’s claim period has passed, and you have paid debts, filed all necessary tax returns, and settled any disputes, you are then ready to distribute the remaining property to the beneficiaries and close the estate. An estate lawyer can help with any and all of these steps and so you do not have to go it alone, especially if there is any contention.