Wills, Trusts and Probate Legal Services
What is Probate?
The word probate is a broad term, encompassing a few different legal actions. For example, probate can refer to the method in which an estate is processed through the legal system after a person dies, and it can also refer to the specific act of presenting a will to a court officer to file. When it refers to the processing of an estate, probate is most simply described as the ’script’ for how an estate should be handled upon a person’s death. All estates must be processed in a specific way.
Is An Estate Without a Will Still Probated?
Many people mistakenly assume that the probate process only applies to estates with wills attached. This simply isn’t true though, as every estate will be probated, with or without a traditional will, unless there is a living will in play and assets are transferred before a person’s death. A traditional will serves only to make the process easier and lets others know how a person prefers their estate be processed. Without a will, the legal system determines who gets what from an estate.
Process of Probate:
- Naming a Personal Representative: Usually a will names the person who should be the personal representative for the estate. If there is no will present, the court appoints a person to this position. If living family members, like a spouse or the adult child of the deceased want to be the personal representative, they can request this and become the court appointed representative. After the personal representative is identified, they are sworn in. This usually involves the person taking an oath of office. After this, the personal representative will file the Petition for Probate of Will and Appoint of Personal Representation, which begins the probate process.
- Notification of Death to Creditors And Heirs: Some states require the personal representative to publish a notice of death in the local newspaper. In Texas, a notice needs to be published in a newspaper in the County in which the probate proceeding is pending. The notice informs any potential creditors of the deceased that the probate proceeding has been opened. In addition, it notifies the creditors the identity of the executor, the address of their attorney and notifies the creditors they must file a claim against the estate if they desier to be repaid for their outstanding debt. The Notice to Creditors is a routine matter which we can prepare for you.
- Creating an Inventory of The Estate’s Assets: Whoever was appointed the estate’s personal representative will have the job of inventorying all estate assets. This is accomplished so the total value of the estate can be determined and serves as a way to determine if there is enough money to cover all debts.
- Distribution of Said Assets, Including the Paying of Any Debts: The final step of the probate process is the distribution of the estate assets or property. All creditors have to be paid first, in a certain order. For example, legal fees and appraisal costs are paid first, then funeral expenses followed by outstanding debts and taxes and then all remaining claims. Once all qualifying debts are paid, the remaining money is then distributed to the heirs, and this ends the probate process.
Factors That Could Complicate The Probate Process
In general, the probate process is straightforward and easy-to-understand. However, it can be complicated on occasion. An example of this is when there is more than one state involved. If a person lived in one state and owned property in another, there could be two probate processes going on in different locations. Also, it’s worth noting that probate only covers certain estate items. For example, if a house belongs to the deceased and their living spouse, that house would not be part of the probate process and would be labeled nonprobate property. Property must have been owned by the deceased alone to qualify and become part of that person’s estate and subsequent probate process.
To ensure the best possible outcome while navigating the probate process, contact an attorney experienced in probate law to help you through this sometimes stressful life event.