Estate Planning/Probate | Legal Corner

What is the Purpose of Probate?

Jun 5, 2020

By the time this article is published, our state will likely be coming out of isolation and reopening businesses.  Unfortunately, many people who have suffered the loss of a loved one will begin the process of managing the estate.  Part of this process involves filing a case for Probate.  In its basic form, Probate is the legal process for transferring assets to the rightful heirs.  In function, probate can be a much more complicated process.

To begin a probate case, there must be a Petition filed with the Probate Court in the county where the Decedent (person who passed away) resided at the time of their death.  If they owned real estate in other states or counties, another case gets filed in those states or counties.  We call those ancillary proceedings.  The Petition notifies the Court of the Decedent’s information, states whether there was a Will, lists the heirs, and provides information regarding the person desiring to be appointed to manage the estate (the Executor).  The Petition also lists the anticipated assets of the estate.

Once this document is filed, the clerk will schedule the case for a hearing to appoint the Executor which grants him authority to act on behalf of the estate to collect and protect the assets, pay the debts, and distribute the estate to the heirs.  If there was no Will, the appointed person is called an Administrator.  Typically, an Administrator has less authority than an Executor, and must ask permission from the Court to manage certain aspects of the estate such as selling real estate or resolving squabbles among the heirs.  An Administrator is also required to get bonded by an insurance company.  An Executor is usually not required to obtain a bond because most people waive the requirement when they name someone in their Will to act as their Executor.

After the Court appoints the Executor or Administrator, they must begin the job of collecting the assets and holding them for safekeeping.  Within two months of their appointment, the Executor/Administrator is required to file an Inventory with the Court to list the assets of the estate.  They cannot use the assets to pay creditors or heirs until six months has passed.  During this six-month period, the Creditors have the right to file a claim with the Court and notify the Executor/Administrator that they are owed money from the Decedent.  After the six months has passed, the Executor/Administrator is supposed to pay the bills, file any taxes, and settle the estate.

If the total assets of the estate are less than $15,000, a shorter probate process is available called a Petition to Dispense with Administration.   This form is relatively easy to complete and file and may not even require a court appearance.  However, if not handled properly the person filing it could run into troubles with the probate court.

Managing an estate is not always easy.  It’s always best to at least consult with an attorney who can help you navigate the process and avoid personal liability to the heirs or creditors.