Thursday, September 22, 2011

What is Involved in the Probate Process

The death of a spouse, parent or other loved one is a difficult time that involves heightened emotions, complicated paperwork, and a seemingly endless task list. If you've been named as a loved one's executor, then it is wise to hire a probate attorney. Probate is the legal process that takes place after someone dies. It involves determining whether that person had a will, "proving" the will, securing and listing the person's assets, and then settling the person's outstanding financial affairs.

Identifying the Executor

The first step in the probate process is identifying someone to act as the decedent's personal representative. This will be the person responsible for "administering the estate," or handling the affairs of the estate, for the duration of the probate process. If the decedent had a will, he probably named an executor. Unless there is a compelling reason not to, the court will, in most cases, honor the decedent's wishes by allowing the executor to act as his personal representative. If there was not a will, the court is likely to select the deceased individual's spouse, adult child or close family member to act as his personal representative. In the event that no family can be identified, the court may give this responsibility to a bank, trust company or attorney.

Determining the Assets

You are going to have a lot of work ahead of you if you've been named as a loved one's executor. First, you will need to gather and inventory all of the decedent's assets, including bank and brokerage accounts, real estate, and personal property, and determine its value (which sometimes requires an appraisal). You'll also need to file for any life insurance benefits the decedent may have been entitled to and check with his employer to secure any unpaid salary or pension.

Settling the Debts

Once the assets have been gathered and their values determined, you'll begin the process of settling your loved one's outstanding debts. This involves notifying any known creditors of his death and, in most states, placing a notice in the local newspaper to inform any unknown creditors of his death. Creditors may then begin to file claims against the estate. As the executor, your role is to review these claims, determine their validity (or file an exception), and, assuming that assets are available, make payments to cover them.

You will also need to ensure that the estate does not incur any additional costs by closing out all of your loved one's accounts, including credit cards, bank accounts and any subscription services. When all debts have been settled, you'll be responsible for distributing the remaining assets according to your loved one's will or, if he didn't have a will, according to your state's laws of descent and distribution.

Hiring a Probate Attorney

Losing a loved one is one of the hardest things you'll ever have to go through. Spending countless hours handling the affairs of his estate can make the mourning process even longer and more difficult. Therefore, it is a good idea to hire a probate attorney. Like most legal processes, probate is not a simple matter. It involves complex paperwork, deadlines, and serious consequences for missteps.

In fact, there is quite a lot of paperwork to keep track of. When you're already going through a difficult, emotional time, it's easy to become overwhelmed. If you hire a probate attorney, then your attorney will act as an advisor, guiding you through each step of the probate process to ensure that you are 1) aware of your responsibilities and 2) completing all paperwork properly and 3) according to deadlines.

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