What is a Probate?
A probate is defined as a court-supervised process of settling a deceased person’s will. It necessitates establishing the person’s final properties or assets, forfeiting their pending debts as well as allocating assets to the legal/rightful beneficiaries. Even as Hartbrodt Law primarily identifies all the steps of probate, the entire process has no much difference across states.
The sole objective of this article is to introduce you to the process of probate and probate law, primarily if you reside in DeLand Florida. But, let’s first begin by determining whether probate is even necessary.
Is Probate Necessary?
A probate process is not typically needful during the transfer of assets to beneficiaries. Hartbrodt Law presents that an estimate below a given amount may be transferred to successors without any need of going through the probate process or any shortened version of it.
Examples, such as individual retirement accounts, also referred to as IRAs, 401(k) plans, as well as pension plans with an already itemized list of heirs, may not have to undergo the probate process. All the assets/properties in these accounts will be transferred automatically to the listed heir while tagging along with the original account owner’s death.
However, there are other estate planning approaches that people can apply to transfer assets without necessarily placing it via the typically-expensive and public legal steps of probate. On the same note, in case the deceased possessed a significant amount of assets or passed away without having written a will, the probate process or probate law may be required to ensure that the right/legal beneficiaries gain what they deserve.
How Does the Probate Process Work?
In many cases, the wills will enlist an executor, who is responsible for managing the probate process or the steps involved. This individual often has approximately 30 days following the date of the will holder’s demise to submit the document to a local probate court.
On the other hand, in case the decedent passed away without a will or failed to name an executor evidently, a probate court will take up the role of appointing an administrator to help with controlling the steps of probate. Such an administrative role is typically taken up by a next of kin. Equally, an identified executor or court-appointed administrator may turn down the role, in which the probate court identifies a different administrator.
Ultimately, the individual mandated with managing the probate process needs to demonstrate that the will is legitimate.
Authenticating a Will and Testament
Many state laws point out that an executor must file a will and testament with the local probate court immediately the holder dies. The executor must as well file the death certificate and a petition to open the probate process.
Subsequently, a probate judge, through a hearing, decides whether the will is legitimate or not. During this process, the heirs named in the will are allowed to check the will and acknowledge or reject their role in it. The court will determine the next move if the wills are disputed.
Through self-proving affidavits, a probate court can establish whether a will is legitimate or not. In this case, a will grantor, together with witnesses, appends their signatures. On many occasions, these papers are enough to warrant the probate court the opportunity to proceed with the probate process.
Once the court has the green light, the executor is given letters of authority/administration, which he or she append their signatures or them, confirming their entry into the probate process to administrate estate matters. Similarly, some states will require the executor to post bonds, an insurance policy that safeguards heirs in case he or she makes advertent or inadvertent mistakes through the probate process.
Locating Decedent’s Assets for Probate
Upon the start of the probate process, the executor should recognize all the decedent’s assets/properties and their actual value. This includes investments, bank statements, insurance policies, and tax papers, etc.
In some states, executors may need to furnish the court with a document detailing the decedent’s assets, total value estimation, as well as a notation presenting how the value was achieved. Equally, the executor may be required to take hold of physical assets, for example, automobiles and pieces of art. However, he or she must guarantee asset taxes, mortgage payments, and insurance are well covered in the entire probate process. In this case, the decedent’s estate/assets can be used to pay for all the pending debts.
Reaching out to Creditors and Paying off Debts
Nominated executors must reach out to all creditors of the decedent, who will often have little time to lay claim on the decedent’s estate. But this time may differ across states. Equally, an executor can still dispute the creditor’s claims. In this case, the creditor can file a petition to allow the court to pass judgment on the contested issue.
However, no matter what, it is required that all decedent’s debts are paid off, which include health care bills and any expense that the decedent could not pay before their death. Sometimes, pending debts can take away a large portion of the decedent’s assets, which can affect what the heirs will receive.
Filling and Paying Decedent’s Pending Taxes
The executor still is required to pay any pending final taxes with estate money. Sometimes, the federal estate tax can go to the extent of 40% that is due for payment approximately nine months after the decedent’s demise. Moreover, it is possible to decrease the size of one’s estate when alive to transfer assets tax-free.
Allocation of Assets
The executor typically requires furnishing the probate court with papers outlining all the transactions that they undertook during the probate process up to this point, including the actual value of the available estate. Better still, some states may grant the executor the right to ignore this provision if all heirs consider it pointless.
Therefore, if the probate court proves that every debt, as well as taxes, is paid off, it can proceed with distributing the remaining asset to the right heirs identified in the will. In case the decedent lacked a will or died intestate, the court will allocate the assets to the members of the family. Most of all, a surviving spouse is prioritized.
Sometimes the probate process may sound like a daunting process. However, with a comprehensive will, an executor can guarantee that all the right beneficiaries receive your assets rightfully upon your death. The probate process may not be needful. But, it is advisable to get the services of an experienced probate attorney to identify how a probate law affects probate in your location. Equally, an expert financial advisor can guide you on estate planning to ensure that your assets are protected from probate as well as taxation issues.
Please speak with us today. We are ready to serve you. We are located in DeLand, Florida.