When you die, what is involved with handling probate?
While living, you have the right to give anyone any property of your choosing. Suppose you give your power to gift your property to another person, and through a Power of Attorney. In that case, that person is your agent and may give away your property if provided that power, according to an article “Explaining the basic aspects probate” from The News-Enterprise. When you die, the Power of Attorney you gave to an agent ends, and they are no longer in control of your estate. Your “estate” may not be millions of dollars, but it is the extent of everything you own as a legal term.
The property you owned while living, unless it was held jointly with another person, or had a beneficiary designation giving the property to another person upon your death, is distributed through a court order. However, handling probate involves court supervision and requires a series of steps.
First, you need to have created a will while living. Unlike most legal documents (including the Power of Attorney mentioned above), a will is valid when properly signed. However, it can’t be used until a probate case is opened at the local District Court. If the Court deems the will valid, the probate proceeding is called “testate,” and the executor named in the will may go forward with settling the estate (paying legitimate debts, taxes, and expenses) before distributing assets upon court permission.
If you did not have a will, or if the will was not prepared correctly and is deemed invalid by the Court, the probate is called “intestate,” and the law of the state you live in essentially writes a will for you.
Handling probate involves appointing an administrator, or personal representative, to follow the state’s laws concerning how property is to be distributed. You may disagree with how state law directs property distribution. Your spouse or family may not like it either, but the law decides who gets what.
While handling a probate case, the Court will appoint a fiduciary (executor or administrator). It may have a legal notice published in the local newspaper so that creditors can file a claim against the estate.
The executor or administrator will create a list of all of the property and the claims submitted by any creditors. It is their job to ensure that claims are valid and submitted within the correct timeframe. They will also be in charge of cleaning out your home, securing your home and other possessions, then selling the house and valuing and distributing your personal furnishings.
Depending on the size of the estate, the executor or administrator’s job may be time-consuming and complex. If you leave good documentation and lists of assets, a clean file system, or, best of all, an estate binder with all your documents and information in one place, it can alleviate a lot of stress for your executor. Estate fiduciaries with little knowledge or a disorganized mess must undertake an expensive and burdensome scavenger hunt while handling probate.
The executor or administrator is entitled to a fiduciary fee for their work, which is usually a percentage of the estate.
These basic procedures are used whether in Prince George’s County, Montgomery County, Howard County or Anne Arundel County and are implemented by the respective Register of Wills and Orphans’ Court.
Probate ends when all of the property has been gathered, creditors have been paid, the Court has approved the accounting, and beneficiaries have received their distributions.
With a properly prepared estate plan, your property will be distributed according to your wishes, versus hoping the state’s laws will serve your family. You can also use the estate planning process to create the necessary documents to protect you during life, including a Power of Attorney, Advance Medical Directive, and Healthcare proxy.
Give your Executor a Preliminary preview
We have a Zoom online training session on “What to Tell Your Executor” on Thursday, April 20, at 6:00 pm. They may find that introduction helpful.
To register, you can click here.
Reference: The News-Enterprise (Feb. 2, 2021) “Explaining the basic aspects probate.”