When someone dies, their debts have to be paid and assets have to be distributed. Some of the decedent’s assets such as life insurance proceeds, bank accounts with payable on death designations, and certain retirement accounts may transfer automatically outside of the probate process. In addition, your loved one may have set up a trust which avoids probate and placed all of her assets in the trust.
For all other assets, or where there are substantial debts, you may have to open a probate estate with the courts. The purpose of probate is to provide a court-supervised process for payment of debts and transfer of assets to the beneficiaries of the decedent.
The process begins with a proposed personal representative (you may have heard the term “executor” or “administrator”) visiting an attorney. The attorney prepares paperwork petitioning the court to open a probate administration for the estate and appoint the personal representative. If the probate estate is opened and the petitioner is appointed the personal representative, then the personal representative notifies all “interested parties” including beneficiaries, files an inventory, publishes a notice to creditors in the newspaper, sends a copy of the notice to reasonably ascertainable creditors. After publication of the notice to creditors, creditors have three months within which to file a claim. During this time period, the personal representative collects all probate assets, liquidates those which need to be liquidated and places the liquidated proceeds into an estate account, and preserves all other assets. After the creditor claim period, the representative may file objections to any claims filed, and once any issues are resolved begins the process of distributing any remaining assets.
This is a very simplified explanation of a complex process which takes from several months to a year or longer, depending on circumstances. The personal representative has specific legal fiduciary duties with respect to the estate. I am available to help with all probate and estate matters. Please feel free to contact me for assistance.
Please contact us with your questions, comments or concerns. We would be happy to schedule an appointment for your consultation.
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