What is Probate?

If a person dies and owns any assets in his or her name alone (i.e not held jointly with another person), the family may need to use the court to transfer the property out of the deceased person’s name. The process of transferring property is called ‘probate’. Probate is done through the court to ensure that the transfer is done appropriately and in accordance with law. Certain assets, including property held jointly with another person and accounts with a beneficiary designation, do not require probate in order to transfer the property. It is advised that you contact a probate attorney in order to determine if a probate is necessary.

There are times when a probate is not necessary. If a person dies with less than $50,000 in assets and does not own any real estate, then something called an Affidavit of Collection may be used in lieu of probate to transfer any assets. Again, it is advised that you contact a probate attorney in order to determine if an Affidavit of Collection is appropriate for your situation.

It is a common misconception that if a person has a will, then a probate is not necessary. A will is the instruction manual that tells the court where the deceased’s property should go. Probate is still necessary to actually transfer the property to the parties identified in the will.

If a probate is necessary, the process will typically include the following steps:

Locating the Will. If the deceased had a will, the family will want to locate it and bring it to a probate attorney. It is no longer common to have a formal ‘reading of the will.’ Rather, the remaining steps in the probate will reveal the contents of the will.
Appointment of Personal Representative. The personal representative (formerly known as the executor) is the person charged with administration of the estate of the deceased. In other words, the personal representative is responsible for collecting the assets, preserving the assets, and distribution of the assets. In addition, the personal representative’s duties include signing and filing (typically with the assistance of a probate attorney) the proper documents with the court.
Provide Notice to Creditors. The personal representative must provide proper notice to all known and unknown (via newspaper publication) creditors of the deceased.
Pay Debts. If there are sufficient assets, the personal representative is responsible for paying funeral expenses, costs of administration, and other valid debts, according to the preference provided by the relevant state law.
Inventory Assets. The personal representative must take an inventory of all of the assets owned by the deceased as of the date of death. A copy of the Inventory must be provided to all heirs and interested persons.
Distribution. If any assets remain after payment of valid debts, the personal representative may distribute, sell, or otherwise transfer the assets according to the terms of the will. If there is no will, the assets will be distributed according to relevant state law.
Final Accounting. The personal representative must account for any payments and distributions made. This is known as the Final Accounting. A copy of the Final Accounting must be provided to the heirs and all interested persons.
Close the Probate. Once all of the above steps are finished, the personal representative may ask court to close the probate file. At that point, the personal representative will be discharged.

Typically, the entire process takes anywhere from 5 months to 1 year, and sometimes longer. The length of time often depends on the court’s schedule, family cooperation, and various other factors.

The death of a friend or family member is an emotional, scary, and stressful time. An experienced probate attorney can help to ease some of this by walking you through the process and ensuring that all steps are completed. If you have questions regarding probate or otherwise relating to the death of a loved one, please contact Leslie Thielen, at Leslie@fremstadlaw.com or 701-478-7620.