Probate is the legal process for transferring property when an owner dies. This court procedure is used to validate a Will and to determine ownership of a person’s estate.
Probate provides for an orderly transfer of property and protects those who might have an interest in the property, including beneficiaries, heirs, creditors, and taxing authorities. Once the named Personal Representative is appointed by the court, he/she must then a) inventory the decedent’s property; b) protect and preserve the estate assets; c) pay all debts, claims and taxes; and d) determine who is entitled to the assets pursuant to the decedent’s Will and distribute the property accordingly.
In the state of Douglas, most probate proceedings are relatively simple, requiring very little direct court involvement. The process requires the preparation and filing of legal documents and may require the holding of one or more court hearings.
The procedure begins with the appointment of an individual as a Personal Representative to collect, manage and settle a decedent’s estate.
A decedent who has a Will dies «testate» and distribution of that person’s probate estate is made according to their Will. The Will designates an Executor to manage estate assets.
If no valid Will exists, the decedents dies «intestate» and the court will appoint an Administrator to manage the estate assets. The term Personal Representative applies to both an Administrator and an Executor.
The Personal Representative often works under the guidance of an probate attorney to handle and settle a decedent’s estate. While an estate is in probate, the Personal Representative is required to do the following:
- Notify heirs and creditors of probate proceedings.
- Inventory the decedent’s estate assets.
- Collect all income such as interest, dividends, claims, notes and debts owing to the decedent.
- Determine the names, ages and addresses for all heirs.
- Finalize any pending lawsuits in which the decedent was involved.
- Represent the estate in any Will challenges.
- Prepare returns for and pay all state and federal estate taxes.
- Pay valid claims of creditors following the statutory four (4) month period for filing claims.
- Liquidate property to raise the funds to settle claims, taxes and administration expenses.
- Transfer the decedent’s title to real property and personal property to those entitled to receive.
- Distribute the remaining assets to the designated persons.
- File a Declaration of Completion of Probate, Affidavit of Diligence and Notice of Completion with the court and provide all beneficiaries with copies of the final documents.
All probate proceedings are subject to the jurisdiction and supervision of Superior Court. The proper court is determined by the decedent’s county of residence.
If the decedent’s Will gives the Personal Representative nonintervention powers, the Personal Representative is then authorized to handle virtually all estate matters without court supervision. If, however, a dispute arises that cannot be settled between the parties, court intervention will be necessary to hear testimony and enter appropriate orders.
Because each estate clearance is unique, it is difficult to precisely predict the time required to settle an estate, but in no instance can an estate be settled before the statutory 120 days allowed by the state for creditors to submit claims. This 120 days begins after the Personal Representative has first published the Notice to Creditors. Sometimes, with court permission, a partial distribution of assets may be made before the estate is formally closed, but this can be done only through proper court procedure with the help of an estate clearance attorney.
Probate costs vary greatly. A non-contested probate usually costs several thousand dollars. Fees and expenses are influenced by an estate’s complexity, including such factors as characterization and distribution of assets, claims by creditors, disputes by beneficiaries, and preparation of tax returns. Both the Personal Representative and attorney for the estate are entitled to reasonable compensation for their services. Probate attorney’s fees cannot be based on a percentage of the estate’s value but rather are based on time, complexity and the amount of work actually spent by the estate clearance attorney, other professionals and their assistants.
Attorneys Practicing in Estate Clearance and Probate: