What Is Probate?
Probate is the legal procedure and court process to collect the assets of the deceased person, pay creditors, taxes, and court costs, and then distribute the property of the decedent to the people, entities, or charities named in a Will. (If there is no Will, then to the “heirs-at-law” (closest relatives of the decedent) who are set by statute – the “Intestacy Statute”. Only relatives of the decedent are included under the intestacy statute.)
Probate provides an opportunity for creditors of the decedent to file claims and be paid for debts owed by the decedent. Creditors who are known must be given notice that a probate case has been opened. Notice is also published in a newspaper to give unknown creditors an opportunity to file claims. The “heirs-at-law” must also be notified whether or not they are named in the Will.
There is a time limit for filing claims; generally, it is 6 months from the date of notice.
Probate will take a minimum of 6 months, but generally will last at least a year. If there is controversy, it may last many years.
Are There Ways to Avoid Probate?
Absolutely. Probate can be and often is avoided with the proper preparation of an Estate Plan. If your probate type assets are titled in a trust, they will pass to the beneficiaries without probate.
Married couples often title many of their assets in joint tenancy or tenancy by the entirety. When one spouse dies, the property belongs to the other. Of course, the flaw here is that if both die, probate will be required. Accounts and policies with beneficiary designations are also not probated; the beneficiary designations control to whom these assets are distributed.
Benefits of Hiring an Attorney Experienced in Estate Planning and Probate
If your loved one did not take the time to take the steps to avoid probate, you and your family will need the help of an attorney who practices in the Probate Court. There are many steps to the process, but your Probate Attorney can help you navigate the maze by preparing and filing documents, appearing in court, and keeping you on track. If there is any controversy, such as a will contest or more than one Petition for Probate, your Probate Attorney can represent your interests.
If you are the court appointed executor or administrator, you will have many duties including:
- Collecting and preserving the assets of the estate;
- Paying the debts and taxes from the decedent’s assets;
- Seeing that the appropriate tax returns are filed; and
- Distributing the remaining assets as directed by the Will (or the Intestacy Statute when there is no Will).
What makes hiring me different than choosing many other attorneys? Many clients have told me that my patience and compassion helped them through the grieving process in addition to the experienced legal assistance I offer. Losing a loved one is traumatic. Arguing with family members is traumatic. Hiring an attorney who is not only experienced, but also a kind and compassionate listener can help to ease the pain.
Additionally, an attorney who is not familiar with the Probate process may waste the Court’s time, your time, and the estate’s funds.