What is Probate? We Can Talk About It!
What you should know about Probate
Probate seems to be one of those words that strike anxiety and confusion. But read on because knowledge is power!
Probate is the court-supervised process by which a will is validated and an estate and its assets are retitled and distributed to heirs after someone’s death - a deceased person who is legally termed a decedent. The process involves making an inventory of assets and properties in the estate, paying any debts and taxes associated with the estate and then distributing what remains following instructions in the Last Will & Testament or in the absence of a will, according to your state’s Probate Law.
Who manages a Probate?
The legal title for this role is executor or administrator and will be either the person named in the will or someone appointed by the court in the county where the decedent lived. These might be chosen from the following:
Surviving spouse
Anyone receiving property in the will
Anyone entitled to property by law if there is no will
Decedent’s immediate family members
Creditors to whom the decedent was obligated
A person of good character residing in the the decedent’s county
If possible, it may be a good preliminary step to check in with family members and heirs to ensure that they are all on board with the current state of the will and the probate process ahead. The court will need the Last Will and Testament, a certified copy of the death certificate, names and addresses of the decedent’s heirs, and a list of the known creditors.
A first step for the Executor or court-assigned administrator is to go to the Clerk of Superior Court and the Estates Office in the deceased’s county of residence. There they will submit an application to “open” the probate process and then take an oath that they will distribute the assets as required by law.
After this approval process, all interested parties and creditors will need to be notified. These include beneficiaries named in the will, and any creditors that the executor finds in the financial documents. If everyone agrees that a will is valid and no one contests, the court can move forward with paperwork.
Next, the executor goes through a process of inventorying and assessing the total value of the estate to ensure that assets are distributed properly. This can include everything from checking account balance to stocks and bonds and assessments of jewelry.
Now it is time to distribute the assets, which can be time consuming if it involves selling real estate and other more complicated transfers. This also includes submitting policy claims and paying any outstanding bills, taxes and debts. This may also involve an estate sale or many trips to the dump. The enormity of the task entitles an executor to some level of compensation that is determined either by state law or within the will.
The final step comes when all assets have been distributed, sold or discarded, and executor and court fees paid. Then the executor approaches the court with a petition to close the estate and end the probate process. Again, this petition is a matter of public record and open to examination by outside parties.
The complexity of the probate process reflects the vital importance of communicating in advance what your wishes will be for your estate. It is also good to know that the probate process can be avoided by creating a trust document for transferring your assets—real estate, vehicles, bank accounts etc. through an appointed trustee rather than the court.
Remember that as you navigate all of life’s turns in the road, you can trust our legal team at Hillsborough Wills & Trusts to support you and your family as you Build Your Circle of Security.
Call us for a free consultation at 919-245-8440 or contact us today.
