When a family member or loved one dies, his or her assets and property will be subject to a probate proceeding unless the asset or property passes by operation of law. The probate process is the steps needed to legally administer the assets and debts of the decedent and eventually distribute the assets to the people entitled to them. A Personal Representative named in the Will or one that is appointed by the court if the Will doesn’t name one or if there is no Will is charged with taking care of and handling the estate. Probate is handled in a probate court that is governed by state laws. Probate administration involves collecting assets, paying debts, resolving disputes and distributing the remaining property according to the Will or law.
Who’s Responsible for Paying Debts?
The Personal Representative must allow time to identify creditors and then pay those creditors using estate assets. The Personal Representative must publish notice to creditors of the decedent’s death in a newspaper of general circulation and then must wait 4 months before any unknown claims are barred. The Personal Representative must allow or disallow any known debts and must notify any known but disputed creditor by mail if that creditor’s claim is to be barred.
Who Distributes Assets?
The Personal Representative is responsible for distributing assets and carrying out the decedent’s intentions expressed in a Will. This is accomplished by recording deeds for real property and by distributing other property in kind or in cash once the property has been liquidated. There is a statutory preference that assets be distributed “in kind” if possible.
How Does Probate Start?
Upon informal application of formal petition, the Court will admit the authenticity of a Will and issue letters of authority to the person named in a Will or with a statutory preference to act as the Personal Representative. Interested persons typically have 4 months after notice of an informal application to object to the authenticity of a Will or the right of a person to serve as the Personal Representative.
For what is the Personal Representative responsible?
- Finding and managing the decedent’s assets. This includes making an inventory of bank accounts, investments, real estate and vehicles within 90 days of being appointed.
- Taking care of end-of-life details like contacting the IRS, Social Security Administration, health insurance companies and banks to inform the organizations that the decedent has passed
- Paying income and estate taxes.
- Paying debts
- Supervising the distribution of property
When is Probate Needed?
Probate is necessary when the estate has more than $75,000 of personal property, including bank or investment accounts or more than $100,000 in real property that does not pass by operation of law.
How Long Does Administration Take?
The minimum time is about 6 months. The actual time will depend on when the assets and debts have been administered and whether there are any disputes about how the assets are to be distributed.
We can help you with probate and non-probate transfers. Call us for a consultation about what is needed and an estimate of the time and cost involved in your particular case.