Many people who hear the word “Probate” conjure up images of a long, extremely complicated process that happens when someone dies. While some probate cases can be that way, a lot of states have taken steps to make the probate process easier and faster.
Especially with an attorney’s assistance, most people won’t have a problem being a Personal Representative or Executor of an estate. This article will cover the basic steps of the probate process.
Opening the Estate
When a loved one dies, someone, usually the Personal Representative or next of kin, submits the will to the probate court. This is normally done in the county where the deceased person lived.
Once the will is filed, the court will then determine whether the will is valid. The court will then approve the person who was selected as the personal representative in the will. If there is no will, the Court will then appoint someone to be the Personal Representative of the estate. When the Personal Representative is named, the court will issue an order giving that person the authority to act on the estate’s behalf.
The Personal Representative will then be able to notify relatives, heirs, and any creditors of the decedent’s death, although in most cases the heirs and relatives already know the person has died. To notify any creditors the Personal Representative will contact them by letter and will place a publishing notice of death in the local newspaper.
Assembling the Assets
Next the Personal Representative, often with the help of an attorney — , recommended move in many cases — will take an inventory of all the decedent’s personal property, real estate, investments, and other assets. From this money all the debts will be paid.
It may be necessary to obtain professional appraisals for real estate, jewelry, special collections, and other items of unique value. Sometimes these assets will need to be sold to pay off debts or to pay beneficiaries, if it’s stated in the will that the beneficiaries are supposed to be paid in cash, and not in another type of property.
Pay Any Taxes
If the estate is subject to federal or state estate or inheritance taxes those have to be paid before any of the assets are paid to the beneficiaries. The Personal Representative also has to take steps to be sure the income tax return was filed for the year that the person died.
Distribute the Remaining Assets
Once all the creditors and taxes have been paid, and the state-mandated waiting period has expired, the Personal Representative will then distribute the remaining assets according to the terms of the will. If there wasn’t a will, the distribution of the assets will be decided by the Probate Court based on the laws of that state.
Property Not Subject to Probate
There are some items in an estate that do not need to go through the probate process and are instead immediately transferred to the beneficiary.
Some common types of non-probate property includes any property that was owned by a married couple and is deemed a “joint tenancy.” This property, usually real estate, goes to the surviving joint tenants or spouse.
- Life insurance proceeds will automatically be paid to the beneficiary or beneficiaries named on the policy and will usually not have to go through the estate or probate process.
- There are some exceptions depending on how the premiums of the policy were paid and this should be discussed with your insurance agent and — if there is any question — an experienced estate attorney.
- Retirement accounts generally have a named beneficiary, and will pass directly to that person without the probate court being involved.
- Any property or assets included in a living trust can go to the beneficiary or beneficiaries named in the trust without being probated.
Conclusion
While the probate process may seem complicated, and in some large estates, it can be, generally the probate process is pretty straightforward.
It’s highly recommended that if you are named as Executor or Personal Representative of an estate, that you retain a qualified probate attorney to assist you in this process.
For nearly 25 years, Jon Ostroff has been representing the estates of over 100 children and adults who have died across Pennsylvania as a result of someone else’s negligence. Jon will spend the time and money it takes to figure out what happened to your loved one. If unable to recover money for your loved one’s estate, Jon will pay these costs.
Jon Ostroff’s ability to find the evidence that wins cases has earned him his distinguished reputation across Pennsylvania as a wrongful death attorney.
