If you are contesting an inheritance or you are in the process of creating a will, chances are you might have heard of the “probate process.” Probate is the court-supervised procedure of collecting and gathering a deceased person’s estate and assets to pay off debts and distribute the remaining assets to the heirs. Unless there is a dispute over the inheritance or debts, the probate court doesn’t intervene much.
Different states have different probate processes. Moreover, not all estates are subjected to the probate process. Small estates are exempt from the regular probate process. If you are considering writing a will, you should be aware of how it can affect the probate process. Since probate laws and processes are complex, one should look for an elder law attorney for professional help.
How to begin the process of probate?
To begin the probate process after the demise of your spouse or someone close, you should submit a request to name you as an executor with the probate court. Remember, in some states, executors are referred to as personal representatives. In the absence of a valid will, the court may appoint you as an administrator. Along with the application, one must submit the dead certificate and the original will and estate plan of the deceased person. If you haven’t submitted the required documents with the court, you can submit them to the local circuit court or probate court.
In case the deceased person owns several properties in the same state, there is no need to file for a separate probate process in the counties where the deceased person owns the property.
Understanding What Happens at the First Probate Hearing
Once you have applied for the post of executor, the probate court will schedule an initial hearing. The hearing offers interested people a chance to object to your appointment as the executor. Before the first hearing, you will have to send legal notice to all the beneficiaries named in the will. In the absence of a will, you will have to send legal notice to people who inherit the estate under the intestate succession laws. Besides this, you are also required to send notices to the creditors through newspaper publications. Since such matters are complicated, one must rely on lawyers who are aware of elder law estate planning rules.
If the court approves your request, they will issue documents stating you are authorized to act on behalf of the deceased person. The court-issued notice is called Letters of Authority, Letters Testamentary, or Letters of Administration in case of no will.
Posting a Bond
The probate court also requires that the executor post a bond to protect the deceased person’s estate and assets against the losses they may cause. Some wills may specify whether a bond is necessary or not. If the will doesn’t mention anything regarding the bond, the judge can make a decision. If the beneficiaries named in the will say in writing that there is no need for a bond, the judge may decide not to form one. However, if an executor lives out of the state or is not the one named in the will, the court may require a bond. The amount of the bond depends upon the size of the estate.