What to Probate?
Probate is a court-supervised process that locates and determines the value of a person’s assets, pays the deceased’s final bills, and distributes the estate to any beneficiaries. Each state has its own probate code they follow.
If a will is in existence, there are laws requiring anyones in possession of the deceased’s will file the will with the probate court as soon as possible. The application for probate and the death certificate should be filed at the same time.
A probate judge may call a court hearing to determine and confirm that the will is valid. All beneficiaries and heirs must be given notice of the court hearing since it gives them an opportunity to object to the will or to who will be the executor of the estate.
Appointing the Executor of The Will
A judge will appoint an executor of the will to oversee the probate process and settle the affairs of the estate if the decedent’s choice for an executor is not included in the will. A judge will typically choose a surviving spouse or adult child if one is not named. The person the judge chooses can decline serving. If they decline, the judge will appoint someone else.
The Executor’s Role
The appointed executor will need to first locate the decedent’s assets, some which may be hidden or unheard of, and place them in a safe location to protect them during the probate process. The executor must review insurance policies and tax returns.
Most states require the executor to submit a written report, listing everything the decedent owned and the value of each asset.
Identified creditors of the descendent must be notified of the death. Most states also require a notice of death be published in the local newspaper to notify unidentified creditors. The creditors have a small window of time to make claims against the estate for money they are owed. If the executor objects to any claims, the creditor may petition the court to have a probate judge decide if the claim should be paid.
Estate funds will be used to pay all of the decedent’s debts, taxes due, and final bills. Neither the executor nor the beneficiaries nor the heirs are personally responsible to pay the decedent’s debts. If the estate has insufficient funds, it will be deemed insolvent and most states have statutes outlining the priority of creditors to be paid with whatever funds are available. The executor will file the decedent’s final tax return for the year of their death and determine if the estate is liable for any estate taxes. Estate taxes are typically due within nine months of death.
Distributing the Estate
The executor can petition the court for permission to distribute the decedent’s assets to the named beneficiaries in the will, after all the previous steps have been completed.
Paul J. Burkhart
The Law offices of Paul J. Burkhart, P.L. have experienced attorneys who can help you with probate law.
Our team assists both individuals and business clients with all their legal needs, including business and Corporate Transactions, Business/Commercial and Civil Litigation, Real Estate, Intellectual Property, Family Law, Probate and Estate Planning matters. We are a full-service private law firm ready to assist you with any request, large or small. Call 561-880-0155 or visit our website.
Law Offices of Paul J Burkhart, PL
800 Village Square Crossing
Palm Beach Gardens, FL 33410
Phone: (561) 880-0155
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