What is Probate?

What is Probate?

What is Probate? 

Clients often ask, "What is Probate?"  Probate is a legal proceeding in certain state courts required to transfer ownership of a decedent’s property. A “decedent” is a deceased person. If a person dies owning property not otherwise assigned to new owners through private contractual transfers before or immediately upon death, then the decedent’s remaining property is deemed owned by the decedent’s “estate” until a court-approved transfer of ownership occurs. Probate is the legal process that accomplishes this transfer.

Whereas individuals may discretely transfer ownership of property by private contracts or trusts, probate is always a public process because it only occurs in a public court.

Only certain parties with relationships to a decedent authorized in state law may initiate a probate. An authorized person initiates a probate by filing a probate petition in the appropriate court. The petition actually consists of many different documents that will vary depending on the property, family, and several other factors unique to each decedent. Upon the court accepting a probate petition, the court will appoint a personal representative who manages the probate. A surviving family member acts as the personal representative in most cases, but not always. Given the variations of possible documents unique to each petition, and the many responsibilities and duties the personal representative must undertake, most parties either filing a probate petition and/or serving as personal representative will hire a probate attorney familiar with the process.

After the court accepts a probate petition and appoints a personal representative, then the personal representative, often with the assistance of a probate lawyer, will be responsible for administering the estate. Such administration at a minimum typically includes:

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  1. Securing the decedent’s property from theft or depreciation, creating an inventory of the property, and determining a market value of the property.
  2. Paying for the funeral, final expenses, and outstanding bills or other obligations of a decedent.
  3. Preparing and filing a final federal tax return of a decedent.
  4. Preparing and filing a final state tax return of a decedent.
  5. Drafting and conveying notices to a decedent’s heirs or devisees.
  6. Drafting and conveying notices to a decedent’s known creditors.
  7. Drafting and conveying notices to a decedent’s unknown creditors in a method authorized by state law.
  8. Determining which and whether a decedent’s individual assets are restricted by secured creditors who hold a priority interest.
  9. Determining which parties are entitled to what shares of a decedent’s remaining property and how such shares will be allocated.
  10. Preparing real property deeds and other transfer documents, as well as recording such instruments with the appropriate government agencies, if required.

There are many other subtasks involved in any of the individual steps detailed above. And depending on the complexity of a decedent’s assets, debts, net worth, wills, trusts, other estate planning, marriages, and children from multiple or prior relationships, the laws applied to each step can vary significantly. Moreover, if a decedent owns real property in more than one state, the petitioner will need to open and manage multiple probates in each state. Notwithstanding the complexity of applicable laws, the legal responsibility of administering the probate estate and applying the laws correctly ultimately rests with the personal representative who may be held personally liable for failing to do so.

A probate for a simple estate typically takes about 6 months to complete. However, for estates owning more complex assets or estates that are contested by other parties claiming an interest, the probate could take many more months or even years to complete.

The probate lawyer and paralegals at the Citadel Law Firm routinely represent petitioners, personal representatives, and heirs in probate proceedings. We invite you to schedule a free initial consultation with us to determine whether the Citadel Law Firm PLLC is the appropriate firm to assist you and protect your interests in a probate. To schedule a free consultation click here or please call (480)565-8020.