The loss of a loved one can be devastating. Even when people believe they are prepared, they are often still caught off guard on the numerous, practical, and expected duties that fall to the family members, including the many legal formalities surrounding a probate estate. When people think about leaving their possessions and money to loved ones, they often are not thinking about the complicated legal, court process known as probate.
What exactly is probate?
Simply put, probate is the court process of retitling assets from a deceased person’s name into the name of the proper beneficiaries. While it may seem that the process should be fairly straight-forward, nothing is further from the truth. The specific documentation and precise order of actions needed, as well as the multiple filings of applications to courts; contacting banks, creditors and other financial institutions; locating heirs; and handling estate sales makes the process complex and convoluted.
Consider the following process that needs to be followed with just the court alone:
- Initial, fairly detailed filings have to be made to the court to get the process started. The information has to be submitted in the proper format, on the proper approved forms, outlining all of the known assets of the deceased with information on all of the beneficiaries of the deceased.
- A second filing with an exact accounting of everything owned by the deceased person on the date of death is due 90 days later. Having to calculate and provide documentation on these exact figures is the point where many find that they are in over their heads.
When people come to our firm at this point for assistance, it is often at far greater expense and ends up taking many more months to settle the estate than if we were engaged in the first place.
- Last, a final inventory has to be submitted to the court with documentation surrounding all of the money received into the probate estate, all of the expenses paid out of the estate, and all assets distributed to the beneficiaries. If the executor/administrator has been doing things themselves and actually made it past the second filing, unless they are extremely diligent in their paperwork they often have difficulty getting the last filing correct without multiple follow-ups and frustrating hunts for documentation.
There are often assets that supposedly avoid the probate process because they are held as “joint with a right of survivorship,” or they have a “pay on death” beneficiary designation listed on them. However, these items require just as much documentation as the probate assets just to show they are not to be counted as part of probate. Not exactly “avoiding” the probate process now, is it?
During a time of grief after losing a loved one, those closest to the deceased person want to take action. However, before the Pandora’s Box of red tape is opened by filing something with the clerk, we recommend that the entire probate process be turned over to an attorney who can act as the executor or administrator, making probate easy, and saving people from additional stress and grief long after their loved one has passed.
If you have any questions or would like for our firm to assist you with probate or other estate planning needs, please contact our office at (919) 844-7993.