Charles W. Jones Attorney at Law

THE PROBATE PROCESS

When it is necessary to transfer a deceased person's assets through a court proceeding, "probate" is the term we use for that court proceeding. There are two types of probate proceedings; proceedings with a will and proceedings without a will.

PROBATE WITH A WILL

The Last Will and Testament contains instructions for the distribution of a deceased person's assets. It also names someone to be a personal representative. If a will has been written, the personal representative asks the Court to approve the will and to formally appoint a person to be the personal representative. The Court will take testimony to insure the will is valid and properly executed. The Court then appoints the personal representative, who is usually the person identified in the will.

The personal representative is responsible for managing the probate process and the estate. The personal representative normally hires an attorney to help with the probate process.

The duties of personal representative are extensive. They include:

Filing an inventory of the deceased person's assets
Preparing the income tax returns and paying the taxes on the assets
Paying the deceased person's medical and funeral bills and any other unpaid debts
Paying taxes on income earned by the deceased and by the estate for the appropriate tax year
Accounting to the court for all income, expenses and distributions.

After all of these things have been taken care of, the personal representative distributes the remaining assets to the people named in the will.

PROBATE WITHOUT A WILL

If a person dies without a will, he is said to have died intestate. The intestate probate process is very similar to a probate with a will, except that someone close to the deceased person usually asks the court to make him or her the personal representative. Normally this is someone who will receive property because he is a close relative of the person who died. The probate Court will try to insure that the person asking to be the personal representative is fit for the job. For example, the Court will require the person to purchase a bond from an insurance company. This bond guarantees that the personal representative's job will be performed properly, and that no assets will be lost through the actions of the personal representative.

Once the Court appoints the Personal Representative, the deceased person's assets are distributed according to the law of intestacy. This law determines who receives the assets when there is no will. Generally, the assets go first to the deceased person's spouse, then to the children. If the children have died, the assets go to the grandchildren or great grandchildren. If the deceased person has no spouse, no children, no grandchildren, and no great grandchildren, the assets go to the parents of the deceased person. If the parents have died, the assets go to any brothers or sister of the deceased person. If the brothers or sisters have died, the estate goes to the nephews or nieces of their children. If no relatives can be located, the assets go to the State.

A probate proceeding is usually fairly straightforward. It is normally completed in about six months unless there are conflicts over the validity of a will, or the nomination of a personal representative. However, delays sometime occur due to unpaid medical bills or other claims against the estate. In our age of Medicare and multiple health insurance policies such details can take time to sort out.

The legislature has created a procedure called an informal probate which simplifies the probate process, while still protecting any potential claimants to the deceased person's assets. Unfortunately, this procedure can still be fairly involved.