probate: dirty word?
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Probate: Dirty Word?. Josh Copeland Carlson & Copeland, PLLC September 20, 2011. Probate: Dirty Word?. What is Probate?. What is Probate? The legal process by which we wrap up the last affairs of a deceased person’s estate. - PowerPoint PPT PresentationTRANSCRIPT
PROBATE: DIRTY WORD?Josh Copeland
Carlson & Copeland, PLLCSeptember 20, 2011
Probate: Dirty Word?
What is Probate?
What is Probate?The legal process by which we
wrap up the last affairs of a deceased person’s estate.
Probate provides finality, in a legal sense, to the deceased person’s estate.
Dying Testate
When there is a will, it is said the person died “testate”
Dying Intestate
When there is no will, it is said the person died “intestate”
Intestacy Pros and Cons
PROS CONS
Doesn’t require any planning
Don’t have to think about what will happen when you die
Provides no control over how your estate will be distributed
Doesn’t work well for blended families
Can result in minor children owning property outright
Why is Probate Necessary?
Four main purposes of probateTo gather and preserve the deceased
person’s assets;To pay any taxes owed by the
deceased person or the deceased person’s estate;
To satisfy any creditors; andTo determine who will be the new
owners of the assets which have been gathered and preserved
How Long Does Probate Take?
Every estate is unique Generally, even a simple estate will
take anywhere from six (6) months to one (1) year, complex estates may even take years
During probate, the probate property cannot usually be transferred without a Court order
Preliminary Matters
Before filing the petition for probate, it is important to gather informationExamples include:
Did the person leave a will? Where did the person live when they died? What are the extent of the person’s
assets? Who are the person’s heirs at law? Did the person leave any creditors? If so,
who?
Filing the Petition for Probate
Probate begins with filing a petition for probate
Petitioner should be entitled to appointment as Personal Representative for the Estate
Appointment of the Personal Representative
Next step is appointment of the Personal Representative of the Estate
The Personal Representative is the person tasked with ensuring the probate process for the estate is properly carried out
PR’s Duties
Identify, take possession of, and protect the probate property (with certain exceptions)
Receive and collect any payments due to the estate
Determine the relevant information for all of the
possible heirs
Determine and pay any outstanding debts
Wind up the deceased person’s affairs in an orderly
manner and according to the Court’s orders
Inventory of the Estate
Inventory of the Estate is a list of all of the assets included in the Estate
Sometimes it is necessary for the Personal Representative to have these assets appraised
Notice of Probate
Certain parties must be notified of the probate process Generally accomplished by mailing
notices Notice must also be published in
one or more newspapers How many depends on where the
person lived, and where they owned real property
Approval of Creditor’s Claims
Notice of the probate is given to known creditors to allow them the opportunity to present any claims for payment to the Personal Representative
The Personal Representative is then tasked with approving or rejecting the claims If approved by the PR, these claims must
then be presented to the Court for approval
Preparation of the Final Account
Once the time period for the presentment of creditors’ claims has run out, the Personal Representative can prepare the Final Account. The Final Account shows interested
parties what the PR has done with the Estate
Once the Final Account is prepared, it is time to begin the process of closing the Estate
Closing the Estate
Petition for Order Allowing the Final Account, etc. Seeks Court order to wrap up the Estate
Final Hearing on the Petition for Order Allowing Final Account, etc. The Court will order a Final Hearing, and
order notice be provided to interested parties
Interested parties will have an opportunity to object to the Final Account
Final Decree
Final Hearing PR presents evidence to Court showing
Estate properly administered Distribution of Assets
If Court is satisfied, it will order distribution of assets
It will also discharge the PR from any further responsibility
Summary Administration
A process known as Summary Administration may be available It takes anywhere from 60 to 75 days to
complete the entire probate process Often results in less attorneys’ fees
Summary Administration is not always advisable
Available for smaller estates, and for probates of foreign estates