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Probate: Dirty Word?

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Probate: Dirty Word?

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  1. Probate: Dirty Word? Josh Copeland Carlson & Copeland, PLLC September 20, 2011

  2. Probate: Dirty Word?

  3. What is Probate? • What is Probate? • The legal process by which we wrap up the last affairs of a deceased person’s estate. • Probate provides finality, in a legal sense, to the deceased person’s estate.

  4. Dying Testate • When there is a will, it is said the person died “testate”

  5. Dying Intestate • When there is no will, it is said the person died “intestate”

  6. Intestacy Pros and Cons Pros cons • Doesn’t require any planning • Don’t have to think about what will happen when you die • Provides no control over how your estate will be distributed • Doesn’t work well for blended families • Can result in minor children owning property outright

  7. Why is Probate Necessary? • Four main purposes of probate • To gather and preserve the deceased person’s assets; • To pay any taxes owed by the deceased person or the deceased person’s estate; • To satisfy any creditors; and • To determine who will be the new owners of the assets which have been gathered and preserved

  8. How Long Does Probate Take? • Every estate is unique • Generally, even a simple estate will take anywhere from six (6) months to one (1) year, complex estates may even take years • During probate, the probate property cannot usually be transferred without a Court order

  9. Preliminary Matters • Before filing the petition for probate, it is important to gather information • Examples include: • Did the person leave a will? • Where did the person live when they died? • What are the extent of the person’s assets? • Who are the person’s heirs at law? • Did the person leave any creditors? If so, who?

  10. Filing the Petition for Probate • Probate begins with filing a petition for probate • Petitioner should be entitled to appointment as Personal Representative for the Estate

  11. Appointment of the Personal Representative • Next step is appointment of the Personal Representative of the Estate • The Personal Representative is the person tasked with ensuring the probate process for the estate is properly carried out

  12. PR’s Duties • Identify, take possession of, and protect the probate property (with certain exceptions) • Receive and collect any payments due to the estate • Determine the relevant information for all of the possible heirs • Determine and pay any outstanding debts • Wind up the deceased person’s affairs in an orderly manner and according to the Court’s orders

  13. Inventory of the Estate • Inventory of the Estate is a list of all of the assets included in the Estate • Sometimes it is necessary for the Personal Representative to have these assets appraised

  14. Notice of Probate • Certain parties must be notified of the probate process • Generally accomplished by mailing notices • Notice must also be published in one or more newspapers • How many depends on where the person lived, and where they owned real property

  15. Approval of Creditor’s Claims • Notice of the probate is given to known creditors to allow them the opportunity to present any claims for payment to the Personal Representative • The Personal Representative is then tasked with approving or rejecting the claims • If approved by the PR, these claims must then be presented to the Court for approval

  16. Preparation of the Final Account • Once the time period for the presentment of creditors’ claims has run out, the Personal Representative can prepare the Final Account. • The Final Account shows interested parties what the PR has done with the Estate • Once the Final Account is prepared, it is time to begin the process of closing the Estate

  17. Closing the Estate • Petition for Order Allowing the Final Account, etc. • Seeks Court order to wrap up the Estate • Final Hearing on the Petition for Order Allowing Final Account, etc. • The Court will order a Final Hearing, and order notice be provided to interested parties • Interested parties will have an opportunity to object to the Final Account

  18. Final Decree • Final Hearing • PR presents evidence to Court showing Estate properly administered • Distribution of Assets • If Court is satisfied, it will order distribution of assets • It will also discharge the PR from any further responsibility

  19. Summary Administration • A process known as Summary Administration may be available • It takes anywhere from 60 to 75 days to complete the entire probate process • Often results in less attorneys’ fees • Summary Administration is not always advisable • Available for smaller estates, and for probates of foreign estates