| What is the
probate process? |
Probate is the process by which a deceased
person's property, known as the "estate," is passed to his or her heirs
and legatees (people named in the will). The entire process, supervised
by the probate court, usually takes about a year. However, substantial
distributions from the estate can be made in the interim. The details
of the process vary from state to state, but most states have adopted a
variation of the Uniform Probate Code. In recent years a concerted
effort has been made to simplify the process.
| What property is
subject to the probate process? |
The probate estate includes all property held
in the decedent's name. Certain kinds of property, such as property
owned jointly by the deceased and another person, life insurance, and
property held in trust, are not part of the probate estate and are not
subject to the probate process. For example jointly owned bank accounts
pass automatically to the surviving joint owners upon the death of one
of the owners without going through probate. The nonprobate property,
however, is part of the decedent's taxable estate (see below).
| How is the probate
process started? |
First, a petition for probate of the will must
be filed with the probate court, along with the original will and a
certified copy of the death certificate. Notice must be mailed to all
of the decedent's heirs at law (usually the surviving spouse, children,
and children of any deceased children), to those named as beneficiaries
in the will, and, if a charity is involved or there are no heirs at
law, to the Attorney General. Notice must be also published in a local
newspaper. If no one objects by a deadline set by the court, the
personal representative named in the will is appointed by the court.
| What does the
Personal Representative do? |
The personal representative is responsible for
collecting the probate property and for paying any debts of the estate.
The personal representative must file with the probate court an
itemized list, known as an "inventory," of the probate property,
including the value of each item. The personal representative must file
an estate tax return within nine months of the date of death. This is
true even if no estate tax is owed, if the decedent owned real estate
or the personal representative wants his or her final accounting (see
below) allowed by the probate court. Creditors of the estate have a
time limited period to bring claims against the estate. Personal
Representatives generally wait until this claim period has expired to
complete distribution of the estate according to the terms of the will.
As his or her final responsibility, the personal representative must
file an accounting with the probate court showing the income and
expenditures of the estate administration.
As with all estate matters, anyone planning
to probate an estate should consult an attorney who is skilled and
experienced in this area. |
