What Actually Happens During The Probate Process?
During the probate process, the personal representative named in the will, or a family member if there is no will, will seek to retain an attorney. The party involved signs a fee agreement, and the attorney prepares a petition for administration, which will be signed by the personal representative or the person seeking to be appointed by the court as a personal representative. Other documents are also prepared and signed, such as an oath and an affidavit. The documents are then filed, and a probate case is then opened and on record in court.
Early in the probate process, if sufficient information is readily available, the attorney prepares an inventory of the estate. The personal representative and the attorney sign the inventory, which is then filed in court and copies are sent to the beneficiaries of the estate.
An official notice must be published in a local newspaper. This notice is called a Notice to Creditors, and it lets creditors know that they have a right to file a claim when someone has died. The personal representative will have to bring credit card bills, hospital bills, and any other of the decedent’s bills to the attorney’s attention. The attorney has to send these known creditors a notice by registered mail, letting them know that the person has died and that the creditor has a right to file a claim against the estate.
Creditors often check court records to verify the deaths of people who owe them money. Often, they will file a claim before a notice is sent to them or published. Creditors are allowed a three-month window dating from the time the notice to creditors is published in the newspaper to file claims against the estate. There is a process in which the attorney (after consulting the personal representative) can object to a creditor claim. When all claims filed against the estate have been paid or otherwise disposed of, then typically, the attorney will prepare the final accounting.
The final accounting is a report of all the assets in the estate and will show all expenses involved, such as, attorney fees, court costs, personal representative fee and amounts to be reimbursed to the personal representative for out of pocket expenses, taxes, and any other expense and obligation of the estate. The final accounting will also show a proposed distribution of the decedent’s assets to the beneficiaries. The personal representative is responsible for the filing of the decedent’s tax returns. The attorney can assist the personal representative with tax return issues.
A copy of the final accounting is sent to all beneficiaries. The beneficiaries can then sign a document that indicates their approval. If they do not approve, the beneficiaries have 30 days to file an objection. When all matters concerning the accounting have been taken care of (hopefully without the necessity of a court hearing) then the estate is ready to be closed. At that point, the assets are distributed to the beneficiaries and the judge discharges the personal representative.
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