Downs Law Firm, P.C.

Preparing for Probate

Preparing for Probate

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We have all heard the term "probate." However, we may not be exactly sure what this means. It may sound daunting, but don’t be intimidated by the phrase.

How do you go about preparing for probate? Plan to distribute assets with a will.

The word probate is from the Latin word meaning “to prove.” It is the court-supervised process of authenticating the last will and testament of a person who has died and then taking a series of steps to administer their estate. The typical situation, according to the article “Some helpful hints to aid in navigating the probate process” from The Westerly Sun, is that someone passes away and their heirs must go to the Probate Court to obtain the authority to handle their final business and settle their affairs.

Many families work with an estate planning attorney to help them go through the probate process.

Regardless of whether there is a will, someone, usually a spouse or adult child, asks the court to be appointed as the executor of the estate. This person must accomplish a number of tasks to make sure the decedent’s wishes are followed as documented by their will.

People often think that being the legally married spouse or child of the deceased person is all anyone needs to be empowered to handle their family member’s estate, but that’s not how it works. There must be an appointment by the court to manage the assets and deal with the IRS, the state, creditors, and all of the person’s outstanding personal affairs.

If there is a will, once it is validated by the Probate Court, the executor begins the process of identifying and valuing the assets, which must be reported to the court. The last bills and funeral costs must be paid, the IRS must be contacted to obtain an estate taxpayer identification number, and other financial matters will need to be addressed. Estate taxes may need to be paid, at the state or federal level. Final tax returns, from the last year the person was alive, must be filed and paid.

It often takes eight to ten months, sometimes more than a year, to settle an estate. That includes distributing the assets and making gifts of tangible personal property to the heirs. Once this task is completed, the executor (or the legal representative) contacts the court. When everything has been done and the judge is satisfied that all business on behalf of the decedent has been completed, the executor is released from their duty and the estate is officially closed.

When there is no will, the process is different. The laws of the state where the deceased person lived will be used to guide the distribution of assets. Kinship, or how people are related, will be used, regardless of the relationship between the decedent and family members. This can often lead to fractures within a family or to people receiving inheritances that were intended for other people.

Working with an experienced estate planning attorney to put a will in place to make decisions is a much better way to prepare for probate.

Reference: The Westerly Sun (Nov. 16, 2019) “Some helpful hints to aid in navigating the probate process”