Dealing with the loss of a loved one is difficult enough without worrying about navigating your way through the Probate Courts and understanding Property Distribution laws. Allow us to take that burden from you. Whether your loved one died with or without a Will, we will navigate the path for you, educating you along the way.
When a person passes away, any property they owned must be distributed to their heirs or to the beneficiaries they have listed in a Will or in other beneficiary documents. There are two basic types of property to be concerned with: Probate and Non-Probate.
Probate property usually encompasses the following: real estate, motor vehicles, cash, stocks and bonds. This is by no means an exhaustive list.
Non-Probate property usually consists of items such as: life insurance, bank accounts, IRA accounts, 401K accounts and other investment accounts. These are classified as non-probate properties because you typically sign a beneficiary agreement with the financial institution when you open the accounts. These agreements override a Last Will and Testament for the purpose of the specific account. Non-probate assets are usually distributed after the financial institution receives a death certificate.
The probate process with a will
The process may sound difficult and stressful, but we walk family members through every step of it as carefully and swiftly as possible. The first step in the Probate Process is to determine whether or not the decedent had a Will. If there is a Will, we confirm that it meets all the requirements of a valid Will. If so, the process is fairly simple. We file an application with the Probate Court with the original Will at the Probate Clerk’s office. The clerk posts notice that an application to probate the Will has been filed. About two weeks later, the court holds a hearing in which the person named Executor in the Will appears. After the Executor takes an Oath, the clerk will issue Letters Testamentary. These letters give the Executor the authority to step in the shoes of the decedent and gather the property. The Executor then has the job of notifying creditors of the estate. Once the Executor gathers all of the probate assets, the Executor must file an Inventory with the court describing the probate assets in the estate. After the court has approved the Inventory, the Executor can pay the debts of the estate and distribute the remaining assets according to the terms of the Decedent’s Will.
The probate process without a will
When a person passes away without a Will, the process is more complicated. We must first determine the familial and marital history of the decedent. Next, we file an Application to Determine Heirship in order to establish who the heirs of the estate are. In most cases, we simultaneously file an Application for Letters of Administration to ask the court to appoint our client as Administrator to handle the affairs of the estate. We will need two witnesses who knew the Decedent (but are not direct heirs) to sign affidavits detailing the Decedent’s familial and marital history.
The court will then appoint an Attorney Ad Litem to verify the familial history and research any unknown heirs of the Decedent. Once the Attorney Ad Litem concludes the research, a hearing will be held. At the hearing the Applicant for Administrator, the two witnesses, and the Attorney Ad Litem all appear.
At the end of this hearing, the Judge will sign the Judgment Declaring Heirship and the Order Appointing Administrator of the Estate. If all of the heirs agree, the Administrator is usually appointed as Independent Administrator. However, in some circumstances, the court requires Dependent Administration.
Dependent Administration requires court approval for every significant action pertaining to the estate. After taking an oath and possibly posting a bond, the court will issue Letters of Administration. These Letters allow the Administrator to gather the assets of the estate. Once the assets are gathered, the Administrator must file an inventory with the court. After the inventory is approved, the Administrator can pay the debts of the estate and distribute the remaining assets to the heirs of the estate.
There are often alternatives to the formal probate process. These alternatives depend on the circumstances surrounding each case. A few of the alternatives are Affidavits of Heirship, Small Estate Affidavit, and Muniment of Title proceedings. We will be happy to consult with you to determine the best path for your situation.