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However, simply filing the Will is not the same as starting a probate action. Probate is not commenced until a petition to administer the estate is filed with the Court. There are several ways to avoid probate by ensuring that your assets are properly titled, that there are named beneficiaries on your accounts and by creating a revocable trust. Regardless, the more information you share with your advisors/representatives, the more likely you are to have an estate plan that best fits your needs.
This guide is not intended to be a substitute for specific individual tax, legal, or estate settlement advice, as certain of the described considerations will not be the same for every estate. Accordingly, where specific advice is necessary or appropriate, consultation with a competent professional is strongly recommended.
Question #1 What is probate?
Any interested person may file a petition for estate administration and commence a probate action. An interested person is defined as anyone who may have a reasonable expectation to be affect by the outcome of the probate. Probate is a process that is supervised by the probate court. The process identifies and gathers all the assets of the person who died (the decedent), pays the debts of the decedent, satisfies any taxes of the estate, and eventually distributes the assets to the beneficiaries named in the Will.
Probate usually works like this: After your death, your family or friends must find you original Will. If your originally signed Will cannot be located, it will be presumed to have been destroyed and revoked. Therefore, it is vital that you let someone know the location of your original Will. Within 10 days of your death, your original Will is filed with the court in your county. The personal representative
named in your Will, after contacting an attorney, will file documents with the probate court including a petition for administration, acceptance as a personal representative and an order admitting the will to probate. At that point, all of the beneficiaries named in your will are notified of this proceeding and given the opportunity to object. The probate officially starts when the probate court issues letters of administration, which can be taken to the bank to open an estate account. Notice to any creditors of the estate are then filed, alerting these creditors of the probated and providing them with the opportunity to file any claim they may have. All of your probate assets are liquidated and consolidated into the estate bank account. Your personal representative will be responsible for filing any income tax returns and dealing with other applicable taxes. Once all creditors and taxes are paid, and any objections are settled, a final accounting of the estate is made detailing the estate assets, any distributions made and probate costs. A plan for distributing your assets is prepared and all your beneficiaries must agree to this plan. Once the plan is agreed to, your assets are distributed to the beneficiaries. When all assets are distributed, the probate court will officially discharge the personal representative and close the estate proceeding.
Question #2 Why is probate necessary?
The primary function of probate is transferring the title of the decedent’s property to their heirs and/or beneficiaries. If there is no property to transfer, there is usually no need for probate.
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