Probate Process

Generally probating an estate involves three main processes:  1) determining what is owned by the decedent; 2) paying the decedent’s liabilities, debts, taxes; and 3) distributing the remaining property to the proper beneficiaries.   Although this appears simple enough, but the probate process is riddled with, timelines, mandatory forms, required procedure, and traps for the unwary.  For example, if there is a will, it may be contain ambiguities that render it susceptible to challenges by others; there may be contested claims by a spouse, omitted heir, or the decedent may have had pending business obligations that were never completed.  Do not expose yourself to unwanted liability and delay; let an experienced probate attorney guide you through the process

INITIATING THE PROBATE PROCESS

Generally, any interested person, i.e., heir, devisee, child, or spouse may initiate the process, unless there is a will and an executor is chosen (even then the selected person need not participate).  The nominated executor has 30 days to file the Petition.

After the initiating person files the appropriate petition, a mandatory hearing will be set no less that 15 days and no more than 30 days from the date of filing.

After the filing, notice must be given to any reasonably ascertainable interested person which will include actual mail notice to those interested persons and notice “to the world” through publication in a local newspaper of general circulation.

Hearing:  At the initial hearing, if the court determines everything is in order, an Order of Probate along with Letter will be issued to the personal representative.  The letters enable the personal representative to collect assets, pay debts, and generally act on behalf of the estate.  Of course, if you retain the services of our offices, we will appear for you.

INVENTORY AND ACCOUNTING:

Within four months of the court issuing the letters the personal representative must provide the court with an Inventory and Appraisal.  

To Properly Prepare For The Inventory, The Personal Representative Should Immediately Start to Collect:

• All bank accounts, certificates of deposit, stocks, bonds, and other financial documents owned by the decedent.

• All information regarding any real estate that the decedent may own regardless of titled, percentage of ownership, or property you believe the decedent should have a claim to.

• All life insurance information, including policy numbers.

• Any information regarding the decedent’s interest in a partnership, corporation, joint venture.

• Any information regarding any employee benefit, or compensation

• Any information regarding any personal injury claim.

• All vehicle information, including make, model, year, VIN, condition

• Information regarding any antiques or collectables

• Information regarding miscellaneous assets, including identifying household goods and   their condition.

MANAGING THE ESTATE

If you are given full authority to do so, the personal representative has broad authority to execute a multitude of acts on behalf of the estate, including

• Buy, transfer, and sell real property;

• Borrowing or encumbering property

• Completing contracts;

• Compromising or settling third party claims against the estate;

• Making preliminary distributions;

• Selling personal property;

• Continuing decedent’s unincorporated business;

• And, providing for a family allowance.

Again, the acts depend on numerous factors and are wrought with liability to the personal representative.  Don’t risk your inheritance and your own personal exposure.  Let our offices guide you.

FINAL ACCOUNTING

Unless waived, by the beneficiaries, the personal representative will have to submit a final accounting to the court along with a Petition for Distribution.  The final accounting generally due with 1 year after issuance of the letters.

The final accounting will include a showing that all debts and taxes have been paid, all creditors’ claims have been approved or rejected, all expenses of administration have been paid, and the distribution plan.

FOR THIS SERVICE DO I, AS A PERSONAL REPRESENTATIVE, GET PAID?

Yes, personal representatives along with their attorney receive fees pursuant to a statutory scale.  

The Statutory Scheme is as follows: