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A Guide To The Probate Process – How Does It Work?

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Almost all of us already know that family and inheritance law is incredibly complex. There are a lot of provisions, legal details, financial issues and then there’s the human element. Inheritance cases are complex because people often disagree amongst themselves about the provisions of the law. This is where the inheritance cases become really complex.

But what is the probate process? And why does it matter? Do you even need a probate lawyer?

What Is The Probate Process?


Probate is a court-supervised process of authenticating a testament or last will. Probate only works if the deceased has an active last will or testament. This process deals with the transfer of the person’s assets, paying the bills and taxes, distributing the remaining assets and solving other legal aspects after a person dies. Typically, a probate attorney helps the beneficiaries speed up the process.

When Is This Process Required?


The answer to this question is not quite as straightforward as you’d expect. Probate laws vary a lot depending on the state. These laws are called “probate codes” and the process is called “intestate succession” – essentially every state has different laws, so you will have to talk to your probate lawyer for more information.

The probate process is always required if there is no will in case the decedent still has bills and debt to pay. This is always done before the estate is distributed to its beneficiaries. These steps are quite similar in all states, so there will be no major differences between each inheritance case.

Authenticating The Testament And The Last Will


Almost all states have special laws that require anyone who has the last will or testament of a recently deceased person to file it with the nearest probate court. This should be done as soon as possible. During the filing of the last will, a petition or application to open the probate process is also created, preferably by a probate attorney. In some states, the application has to include a valid death certificate as well.

Although all states and counties provide forms for the filing of the probate process, you should ideally get a lawyer to do this for you. After the filing is done, a probate judge will confirm whether the last will is valid. This is usually done during a court hearing, where the beneficiaries will be listed and other details of the testament will be studied.

The hearing allows all those concerned to object the last will that is admitted for the probate process. The issues that commonly occur during this step are legal errors or poorly drafted documents. In some cases, a more recent last will can be presented. Some beneficiaries may object to the appointment of an executor, depending on the inheritance case. If the problems are difficult to overcome, the court will rely on witnesses. If the will has “self-proving affidavits” (this document is signed by witnesses), the court will take these documents as proof of the validity of the last will.

However, if the “self-proving affidavits” are not available, the court will ask the witnesses to sign a sworn statement that the last will is valid and truthful.

The Executor Or Personal Representative


The next step of a probate process is the appointment of an executor. Also known as the personal representative or the administrator of the will, this person will oversee the settlement of the estate. Beneficiaries should have a probate attorney to help them during this difficult process.

Usually, the will includes the executor (as the decedent’s choice). However, if this person is not available, the judge will appoint the next of kin – usually a child or surviving spouse. This individual is not obligated to accept the role; if the person denies the role, the judge has to appoint someone else.

After the executor is appointed, they will receive the “letters testamentary”, a legal term for the complete documentation that helps the settlement of the estate. This documentation is also known as letters of administrator or letters of authority.

Posting The Bond


In some cases, the executor has to post a bond before accepting the letters and the right to settle the estate. Some will, on the other hand, have special provisions that state this step is not necessary. Bonds typically act as an insurance policy – this will kick in to reimburse the estate if the executor makes a serious error – either unintentionally or intentionally, especially if it damages the estate (financially) and the beneficiaries. In some states, the bond can be denied by the beneficiaries as a whole, if they agree on it. In other states, the bond is compulsory and it has to be directly nominated, even if the executor lives in a different state.

Determining And Locating The Assets


This is another difficult aspect of the probate process. Understanding every asset can be quite complex, especially if the estate is large. This is the first task for the executor, and all assets must be located and identified correctly. The process can be difficult because a lot of people have assets that no one knows about, so there will be a lot of investigative work (it’s ideal if you can get help from a good probate lawyer during this stage). The executor must make sure all debts and taxes are paid during this period, the insurance is kept current and the mortgage payments are paid. In some cases, the executor has the right to move vehicles or other items to a safe location, for safekeeping.

Distributing The Estate


After all the steps are completed, the executor will have to notify the court that the distribution process will begin. The assets will be distributed to the relevant beneficiaries, according to the will. This process will need the court’s permission and is granted after all debts and taxes have been paid. If the beneficiaries are minors, the executor may ask the persons responsible to create a trust and include the minors as beneficiaries, until they reach the age of 18. As soon as this process is complete, the probate is finalized.

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