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As an estate planning and administration attorney, I use words that people don’t always understand. Probate is a word that we often use and often assume that people understand. But I know that is not true. The dictionary says that probate is the official proving of a will. That provides as many questions as it answers. Probably more questions than answers!
Probate is the legal process that is directed by the state court system to transfer assets from a person who has passed away to another person or entity. The assets and property that a person owns will be included in his or her estate to be transferred to another person. Because this is a state-directed process, each state or district has slightly different processes. The probate process is a court-directed process that is, as one lawyer says, “a lawsuit that you take out against yourself to give the stuff you have to the people you love.” A last will and testament is the document that directs the distribution of the possessions. However, the process is under the oversight of the court.
After a person passes away someone will take his or her ORIGINAL last will and testament to the probate or “orphans” court. The court will assess a filing fee that is based upon the value of the assets that pass through the probate process. Assets that are jointly owned or have a beneficiary designated generally do not pass through the probate process.
The amount of assets determines if it is a small or large/regular estate. The process may vary, depending upon the size of assets that will be included in the process.
If it is a large or regular size estate, the court may place a legal notice in the newspaper, or multiple newspapers if the jurisdiction requires, announcing the decedent’s death. This notice will announce who has been nominated to serve as the executor, also known as the personal representative in many jurisdictions. In addition, the notice will ask if there are any creditors of the decedent who want to make a claim against the estate to be paid what was owed. The notice will identify a time period that these claims or contests can be made.
Once all creditors’ claims are made against the estate and the personal representative has gathered all of the assets. The creditors are to be satisfied. If there are not enough assets to satisfy the creditors, the personal representative must negotiate with the creditors to come to an agreement. The personal representative is not personally responsible for paying the debts of the decedent unless they are co-borrowers.
It is after all creditors have been satisfied, including funeral costs, court and legal fees that heirs are able to receive from the estate, with some limited exceptions. Again, the personal representative is not financially responsible if there are not assets to pay the creditors. However, the personal representative may have to liquidate assets, such as real property, to satisfy the debts.
When real property is involved, the personal representative may need to liquidate property when there is more than one recipient, and they are unwilling to own the property jointly.
If there is a will, it determines how assets are distributed. If there is not an original will, the laws of intestacy determine how assets will be distributed. This can be quite complicated, especially when the family structure is not the standard template. The standard formula requires that when the decedent is married, the spouse will receive a fraction of the assets and if there are children, they will receive the balance. If there are no children, the parents receive the remaining fraction. There is a formula for the potential family configurations.
The formula clearly cannot take into consideration relationships that are not legally established. Nor can it take into consideration the personalities or the status of the relationships with the people identified.
The final step includes ensuring the final tax return has been completed for the person who has passed away in addition to the tax return for the estate if there is one needed.
The many steps and considerations that are involved in probate are costly in time and money with lawyers, courts, and other fees. Many people don’t know what steps are required and the impact. Working with us, the Life & Legacy Counselors of the Griffin Firm look to support families create, protect, and transfer their assets to loved ones in the most effective way possible. When we know better, we can do better.
I appreciate your explanation when you told us that probate is the legalities involved in transferring assets from a deceased person to another who was named in their will. My grandma left me a piece of land in her will, so I wanted to claim it soon. I’ll have to look for a probate lawyer to guide me throughout the process and ensure everything works out well.
My grandpa left me a plot of land in his will as an inheritance, and since my relatives want to take it for themselves, I plan to take the document to a probate court soon. Thank you for explaining to us that probate is the legal process of transferring assets from the deceased to another person as directed by the state court. I’ll take note of this while I look for a probate lawyer who can help me out soon.