General Law Hot Topics

Probate Law Existence after Demise

When a person passes on, their estate is transferred into probate for legal settlement. If the person died with a will (testate) the executor named in the testament will handle the estate and the last wishes of the deceased, as per the will. If the person died without a will (intestate), or failed to name an executor in the will, the court will appoint someone to act as administrator for the estate. The administrator will be responsible for filing and providing proof of the demise of the deceased and that the will is legal before the probate court. The court must see a list of all the people named in the will, as well as a list of all the debts and assets. At that point those named in the will and the creditors will be notified of the passing. The estate is now in probate. The executer is in charge of managing the estate while in probate. Probate can take anywhere from a few months to over a year. The executer might have to sell some of the property or assets to settle debts or to honor bequests in the will. The court will ultimately grant the permission to the executor to settle any claims against the will and distribute the remaining assets to the beneficiaries. If any disputes arise the court will have to approve any transactions.      

Do you or someone you know need a lawyer to help with your will or probate proceedings? Contact a probate lawyer today to help you at this crucial time with all the procedures associated with probate!

If the departed died intestate and lived in one of the states that recognize a married couple as in tenancy by the entireties, they share the property and/or assets; it all passes to the surviving spouse without the need for probate. Should the departed and family live in one of the states where the surviving spouse does not automatically receive the estate, whether a valid will exists or not, the estate moves to probate court. In this case the probate court oversees the probate to make sure that the wishes are carried out according to the will.   

The steps involved in the probate process are as follows:

• Proof that the will is valid.
• The assets have to be identified and catalogued.
• The people identified in the will must be notified.
• Creditors have to be notified.
• Property has to be appraised.
• Debts and taxes have to be paid off.
• Then the remaining assets are distributed according to the will.
• If the late party died intestate the state will distribute the assets.

Some assets may never enter into probate but pass directly to a person named by contract to a beneficiary; these might include a bank account, living trust, life insurance policies, or right of survivorship assets.

The administrator or personal representative, someone other than the executor, will pay any taxes or debt left behind by the deceased. Then the administrator will allocate the remaining assets to beneficiaries named in the will. If there is no will the administrator must proceed according to the intestacy laws of the particular state. The administrator must act according to the fiduciary duties and treat all beneficiaries fairly. If the administrator fails to meet up to the role assigned, parties with interests in the assets of the will can petition to have that person removed as administrator. The administrator could face liable claims against them should they cause losses or harm from the mismanagement of the estate. If the estate is small enough to not need formal probate proceedings, a relative, friend or small group of them may serve as an informal estate representative. This informal position is usually filled by decision of the beneficiaries and not by the court.        

Estate taxes can not be avoided, but  an Intro Vivos Trust can reduce that burden if it is structured correctly. Another way to avoid estate or inheritance taxes is to give away the asset completely and irrevocably or leave it to a charitable organization. 

Do you or someone you know need a lawyer to help with your will or probate proceedings? Contact a probate lawyer today to help you at this crucial time with all the procedures associated with probate!   

Article written by Juan Carlos Villamil contributing staff writer for SWI Digital, Inc.