Yes, I know that death-related subjects like life insurance are not cheery and uplifting to read about. But, they are incredibly important for the people you leave behind and important for you to know about when your loved ones pass away, so today’s legal discussion topic is probate.
Probate is the process whereby a court appoints a representative for a deceased person’s estate, and that representative gathers the decedent’s assets, pays his debts and then distributes any remaining assets to the beneficiaries of the estate. Probate processes vary between states, and some states offer simplified versions of probate that require little court intervention. Often, representatives for decedents who had little property can complete the probate process without hiring an attorney.
Usually, the first step of probate is to open the probate case by filing an application with the court and providing the court with the original will, if the decedent had one. This is why it’s important for you to let your family know whether you have a will and, if you have one, where you keep it. Even if you give your family copies of your will, they still need to access the original.
Next, the court appoints a representative to act on behalf of the deceased person’s estate, called an executor or personal representative. If the decedent left a will, the court usually appoints the person nominated in the will. Once the representative is officially appointed, he may have to post a bond or take an oath to represent the estate, and the court provides “Letters Testamentary,” which is a document that proves the representative has authority to act for the estate.
Every state has some process for the representative to notify the decedent’s creditors. The representative must make these notifications and pay any legitimate creditors from the money in the decedent’s estate. The representative is not legally required to pay debts from his own personal funds; debts are paid from the estate’s assets. Paying these debts may require the representative to sell some of the estate’s assets.
Finally, if the estate has any remaining assets, the representative distributes those to the remaining assets to the beneficiaries named in the will. If the decedent did not leave a will, the representative uses the hierarchy of distribution in state law to distribute property to the decedent’s relatives.
Depending on the case, probate can be complicated and time-consuming, but don’t be intimidated by it. In most cases, it’s a relatively simple process, and you can make it easier on your family by keeping your important documents and financial records in one place and letting your family know where you put them.
Tagged: wills and estates