Estate Planning Probate Explained

The Probate Process

Probate was created hundreds of years ago in England as a method for transferring title to property from a dead owner to a new owner according to the wishes of the person who died. Those wishes were most commonly found in the form of written directions called a will. As you might imagine when the person who died was no longer around to contest the validity of those directions all kinds of shenanigans can and did occur. In response the probate system evolved to implement safeguards. These safeguards evolved and grew more complex through out history until present day when it takes months to get through all the intricate legal mazes and can only be successfully navigated with the help of expensive probate attorneys.

The probate process goes something like this:

  • The attorney for the decedent’s estate files a court petition for probate.
  • The attorney becomes entitled to fees based on a portion of the estate unless the attorney agrees to a lower fee.
  • The court appoints a personal representative (executor), also entitled to compensation.
  • A monetary bond must be posted by the personal representative unless waived in the will or by the will’s beneficiaries.
  • Notice is given to creditors by publishing a legal notice in a local newspaper.
  • A survivor’s family allowance can be given.
  • All assets of the deceased must be inventoried.
  • Creditor’s claims of the deceased are paid.
  • Assets may have to be sold to pay the decedent’s debts, plus any federal and state death taxes, as well as the fees of the attorney and personal representative.
  • Any assets left are distributed to the heirs.
  • Final federal and state tax returns, plus estate and inheritance returns, are filed.

 

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