Probate is a judicial process in which a probate court supervises the distribution of assets and property left by a deceased person in their Will or according to intestate statutes, if there is no Will. This includes anything of value a person owned at death.
Probate is required to clear title to land, stocks and bonds, or large bank or savings and loan accounts that were held solely in the name of the deceased person, to collect debts owed to the deceased person, and settle disputes between beneficiaries or heirs.
However, if a person dies leaving just a few possessions, such as personal belongings or household goods, these items can be distributed among the Will beneficiaries by the named personal representative without involving the court. Also, whatever the deceased owned in co-ownership, such as joint bank accounts, pass automatically to the surviving co-owner.
If there is a Will, it is delivered to the court to be validated and the provisions followed to the extent possible. When there is no Will, someone, usually a spouse or child, must file a petition for intestate probate.
A personal representative is necessary to handle the deceased person’s affairs. The Will usually names a personal representative (PR) who will be approved by the court, if willing to serve and otherwise qualified. If a person dies without a Will, the court will select the personal representative, usually the surviving spouse, an adult child or other close relative.
The PR has many responsibilities: the PR publishes a notice to creditors in a local newspaper notifying creditors that they have four months to bring any claim against the estate for debts the deceased owes. The PR pays all proven debts of the deceased using the assets of the estate. Teh PR notifies any heirs and any people named in a will that a probate proceeding is in process. The PR identifies all assets and prepares and files an inventory with the court. The PR makes sure that tax returns are prepared and that a final accounting is prepared showing all money paid out from the estate and all money collected by the estate.
After the probate court approves the final accounting and payment of all probate expenses, the deceased person’s remaining assets are distributed to heirs and beneficiaries according to the will to the extent possible.
Of course, all this takes considerable time and involves considerable expense.
Other Probate Matters
The probate court may be called upon to decide other matters related to the protection of a persons assets and property when a persons mental and/or physical capacity is called into question. For example, the court has the authority to appoint a conservator or guardian. A conservator is a person appointed by the court with the authority and duty to manage the financial affairs of a person needing protection, such as a minor (under 18 years) or an adult incapacitated person, after a judge finds that the individual lacks the capacity to manage his or her financial resources. The conservator can be a family member, close trusted friend, bank, trust company, or professional fiduciary. The conservator has the authority to take control of the protected person's assets and income, and the responsibility to provide for payment of the protected person's expenses.
A guardian is a person named by the court to assume the responsibility for making personal and health care decisions for a minor (under 18 years) or an adult incapacitated person. For example, a guardian may decide where the protected person will live and what medical care he or she will receive. The court may appoint a guardian either with unlimited authority, or only for specific actions.
I can guide you through the probate process and represent your interests whatever your involvement may be. Call for a consultation where I can review your interests and explain the relevant law. Contact me at your convenience.
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DISCLAIMER: The information on this website is not legal advice. The content of this website is intended for general information purposes only, and is not legal advice. Legal advice depends on the specific facts and circumstances of each individual's situation.
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David C. Clarke