probate: dirty word?

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PROBATE: DIRTY WORD? Josh Copeland Carlson & Copeland, PLLC September 20, 2011

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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 Presentation

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Page 1: Probate: Dirty Word?

PROBATE: DIRTY WORD?Josh Copeland

Carlson & Copeland, PLLCSeptember 20, 2011

Page 2: Probate: Dirty Word?

Probate: Dirty Word?

Page 3: 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.

Page 4: Probate: Dirty Word?

Dying Testate

When there is a will, it is said the person died “testate”

Page 5: Probate: Dirty Word?

Dying Intestate

When there is no will, it is said the person died “intestate”

Page 6: Probate: Dirty Word?

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

Page 7: Probate: Dirty Word?

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

Page 8: Probate: Dirty Word?

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

Page 9: Probate: Dirty Word?

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?

Page 10: Probate: Dirty Word?

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

Page 11: Probate: Dirty Word?

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

Page 12: Probate: Dirty Word?

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

Page 13: Probate: Dirty Word?

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

Page 14: Probate: Dirty Word?

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

Page 15: Probate: Dirty Word?

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

Page 16: Probate: Dirty Word?

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

Page 17: Probate: Dirty Word?

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

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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

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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