Receiving an inheritance from a deceased relative may seem like a godsend or a scene from a movie. In reality, before you can receive or claim your inheritance, the estates and properties of your deceased relative you have to undergo a complex process called probate. Different states and countries have different variations in the operational process of probate.
Still, all mainly follow the same principle: to prove the existence and content of a will from a decedent (deceased person), settle legitimate claims against the decedent’s property, file the necessary tax returns and distribute the remainder of the decedent’s estate according to his/her will or as stipulated by law.
There may be a possibility that you will be involved in the probate process as an inheritor, and you may also draft your own will in the foreseeable future. Thus, it is essential to know the basics of the probate process to keep you informed and guided as to how it works.
Different states may have different classifications of the type of probate a decedent’s estate must undergo. As an example, the state of Colorado has three general classifications or types of probate: small estate, informal probate, and formal probate. We will give a brief overview of the probate types below.
This applies to a decedent’s personal property that is worth $50,000 or below, and there are no real properties. Regardless of the decedent having a will or not, this follows a straightforward process.
The heirs or devisees will need to collect their parts of the asset by filing an affidavit, thus eliminating the need for a probate action in court. A sworn statement of entitlement to the decedent’s assets from one facilitating devisee is enough, and the facilitating devisee is tasked to distribute the assets to other devisees or heirs.
This applies to uncontested estates that are above $50,000 in value. This type of probate is allowed if the decedent has a valid will or if an apparent absence of a will (intestacy) has been established. This is also the probate process used in cases where there are no contests, and there is a qualified personal representative available.
Depending on the complexity of the assets, the filing of documents and paperwork, and the appointment of the executor, the assistance of a probate attorney may or may not be necessary. Nevertheless, if you have certain things to clarify about the process or if you want to ensure that all steps are followed correctly, you can always seek legal advice.
This is the type probate applied in the case of contested estates, issues regarding the will’s administration, and if a will is invalid, unclear or contested. This will require the intervention of the court and will need the service of a probate lawyer in opening the probate case and other legal functions during the formal probate process. The entire process may take a long time to be finalized, especially during the stage of full administration of the estate.
Generally, the most common types of probate are small or straightforward estates and informal probates. Since we are only going to touch on the simple guide to a probate process, we’ll discuss below how informal probate is conducted.
The process is pretty straightforward, and you may not need legal assistance for this step. All you need to prepare is a valid will, an authenticated copy of the will, or substantial knowledge that there is no will.
The court may then require the person who filed the petition for the appointment of an official representative or executor to fill specific forms. As the petitioner, you can fill out these forms yourself. When in doubt, seek legal assistance.
As an estate representative, you will now be tasked by the court to fill out forms to notify the heirs based on the decedent’s will. If there is no will, you will need to follow the state succession laws in determining who the heirs are.
You will also be required to notify (through publication or mail) any known and possible creditors of the decedent and plan out on how to pay the debts and legitimate claims. It is worth noting that only assets or estates that are probated can be liable to pay debts. Primarily, the heirs or beneficiaries should not shoulder any of these debts or claims.
You will also need to know the assets the decedent has owned. This will make the transfer of ownership process fast and straightforward. Through court appointment, you will be granted the capacity to change assets owned by the deceased. The process is often straightforward, but in cases where you are not sure about the process of transferring the ownership of assets, you can seek legal assistance from a probate attorney.
Before transferring the assets to their respective heirs, the court will give you the task of settling all financial obligations, such as funeral expenses, applicable taxes, and debts of the decedent. Once these are settled and taken into account, the remaining assets can then be distributed among the heirs. In cases where the debts exceed the value of the assets (insolvency), you should seek legal counsel on how to proceed.
Documentation is an essential part of your task while performing the duties and responsibilities of an estate representative. Have a probate attorney review the steps and actions you performed to effectively report to the court and show that you have adequately fulfilled your role, and the estate can be closed. By now, you may already have a vague idea of what is a probate and how a basic probate process works.
To sum things up, the probate process can oftentimes be necessary for clearly establishing a will, determining and managing a decedent’s assets and remaining liabilities, and effectively distributing what remains of the decedent’s assets to the heirs. As an heir and eventually, someone who will leave a will for your loved ones, this piece of knowledge can help change your perspective on how to better appreciate and manage your assets.
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