Wills & Probate2017-10-16T16:12:00+00:00

WILLS & PROBATE

Probate is the legal process that officially proves the validity of a will. This includes an inventory of the decedent’s property, resolving all debts and claims, and distribution of the decedent’s estate. Each state has a general probate law, however, each probate case is administered by the county court and it is best to contact the local courthouse or an attorney for information about your local probate process.

EXEMPTIONS

Determining whether an estate may be exempt from probate will be best indicated by an attorney.  If the decedent has a will, this does not make the estate exempt from probate. Some assets such as jointly owned property, trusts, and miscellaneous assets may be exempt. However, assets that do not qualify for probate will be inventoried with the estate during the probate process.

THE PROBATE PROCESS

The formal probate process may be necessary depending on the value of the decedent’s assets. Each state’s probate law contains a definite minimum value to determine which probate proceedings are required. The probate process can be lengthy and complex taking as long as a few years to complete. It is advisable to contact your local courthouse or an attorney for more information about the specific process in your county and state. We have listed some general guidance regarding the probate process below.

The informal probate process may be selected for estates meeting the requirements of their county and state. The informal process may be completed faster and involves less court participation.

  • Determine if the decedent has a will or a specific plan for how the estate will be settled.
  • List all assets and review all financial records. Complete a search for unknown accounts and property.
  • Upon review of the decedent’s estate, determine probate qualifications and procedures.
  • Select a Personal Representative (PR): this must be done legally through the court. Often, the executor of the estate will act as the PR. However, a PR must be selected if there is no will in place.
  • Notice of Administration must be placed in the newspaper and the publishing requirements are set by probate law.  This notice must be sent to all heirs and creditors, and must contain instructions regarding presenting a claim and a set deadline.  It is recommended that you consult your local probate law for proper content requirements.
  • The PR’s job duties will vary from state to state, but the PR will be responsible for completing the probate process. Due to the complexity of the probate process, the PR must be at least age 18 and can be reappointed by the court based on job performance. The PR’s duties may include:
    • Collecting all assets known and unknown for inventory.
    • Canceling daily routines such as leases, utilities, prescriptions, employment, and postal mail.
    • Pay any and all outstanding debts and claims. (State probate code indicates the order of creditors to be paid.)
    • Placing notice in newspaper and serve notice to all creditors and beneficiaries.
    • Investigating and validating all claims made by heirs, creditors, or other parties.
    • Determining the shares of the estate due to heirs as indicated by will or by state regulations if necessary.
    • Continuing to pay any ongoing bills such as mortgages and utility bills.
    • Continuing to check in with the court and file any necessary paperwork.
    • Filing tax returns and paying income and estate taxes.
    • Upon receiving permission from the court, distributing estate to heirs.

Again, it is important to recognize that the probate process is complex and lengthy. It may be important to hire an attorney to ensure all probate procedures are properly and successfully completed. This list of the steps of the probate process is intended for general guidance.

Family members are not personally liable for debts incurred by the decedent.