The Basics of Probate, Part II

The content which follows is about what happens during the process of probate:

What Occurs During Probate?

The process of probate can be either uncontested or contested.  The majority of contested issues generally come about during the process of probate.  The preceding occurs, generally, because an unhappy heir was anticipating that a greater portion of the decedent’s property was going to be allocated to him or her.

The arguments that are generally brought to the forefront, when the heir is unhappy with the allocation include the following:

  • The decedent may have been ill-advised or was the victim of unfavorable influence when provisioning certain gifts to particular parties;
  • The decedent lacked sufficient mental capacity in the allocation of his or her property to certain individuals; at the time his or her Last Will and Testament was drawn up; and,
  • The decedent did not properly follow certain formal legal guidelines in the drafting of her or his Last Will and Testament.

The arguments aside, the basic probate process is provided below:

  1. All of the decedent’s probate property is collected;
  2. The claims, debts and tax revenue owed is paid by the estate of the decedent;
  3. There is a settlement as to any dispute; and
  4. Distribution of the property that remains within the estate is allocated to the heirs.

The decedent, generally, will name an individual as executor of his or her estate.  The preceding person is responsible for taking over the administration or management of the estate upon the passing away of the decedent. In the case, where the decedent did not name an administrator then the probate court will appoint a personal representative.

Once again, it is the responsibility of the personal representative to settle the estate. The administrator, then, is responsible for many of the duties listed within the preceding content.

It is typical for persons to leave their property to any individual they wish.  The individual drawing up his Last Will and Testament will make designations as to whom he or she wishes to leave his or her personal property and/or real property within the Last Will and Testament.  However, dependent on the relationship to the decedent and the laws of the decedent’s state of residence, his or her personal wishes may be “trumped” by the court.  In example, in the majority of states, a spouse is entitled to a certain portion of the marital property of the estate.  Further, certain individuals or companies may have a respective claim on the estate.

Each venue, generally, prescribes the length of time an estate is opened in order to provide creditors a fair span of time which to present their respective claims.  The more sizable or complicated the estate, the longer is the period of time which the process of probate occurs.  The preceding is true since the entire process, as it pertains to persons with a claim is very time consumptive in nature.

The process of probate, in and of itself, additionally, carries a number of expenses.  The costs are generally paid out of the assets of the estate.  The costs associated with the process of probate follow:

  • The fee of the estate’s personal representative;
  • The Attorneys’ fees associated with the estate,
  • The Court costs associated with the estate.

Check back tomorrow for the final post on the topic, Why a Last Will and Testament is Necessary…