Probate is the legal process that happens after a person dies. The court accepts the deceased’s last will, and then the executor (also known as the personal representative) can carry out the instructions for the deceased’s estate. However, first he or she must pay any debts and sell assets before distributing any remaining property to the heirs.
If the deceased doesn’t have a will, the probate court will appoint an administrator to manage the probate process. The Million Acres article entitled asks, “Probate Explained: What Is Probate, and How Does It Work?”
When the will is proven to be legal, the judge (or the clerk if it is an informal probate) will grant the executor legal rights to carry out the instructions in the will.
When there’s no will, the probate process can be complicated, because there’s no paper trail that shows what assets belong to what heirs. Tracking down heirs can also be challenging, especially if there’s no surviving spouse and the next of kin is located in a different state or outside the U.S.
Executors will hire a probate attorney to help them through the probate process, as well as to assist in filing the required paperwork, notifying creditors, filing taxes and distributing assets. The deceased’s assets must first be located and sometimes may need to be formally appraised to determine their value. Creditors must also be notified after death within a specified period of time.
After the creditors, taxes and fees have been paid on behalf of the estate, any leftover money or assets are distributed to the heirs.
The probate process can be lengthy. Things that can lengthen the process include the state when the deceased was a resident, whether there is a will and whether it is contested by the heirs. The more detailed the will, the simpler the probate process.
The probate process can be expensive, because of court filing fees, creditor notice fees, appraisal fees, tax preparation and filing fees and attorney fees. All of these fees are subtracted from the proceeds of the estate.
Estate planning with a qualified estate planning or elder law attorney involves taking the proper actions to avoid probate. This can reduce the burden for the surviving heir(s) and reduce costs, fees and taxes. Call us at 605-275-5665 to learn about some of the steps you can take before death to avoid probate.
Reference: Million Acres (Jan. 17, 2020) “Probate Explained: What Is Probate, and How Does It Work?”