Even if someone has an extensive estate plan set up before they pass away, it is very likely that their surviving family members and beneficiaries will have to wait a while before the decedent’s property is formally transferred to them. This is because the state court system has a legal obligation to ensure proper administration of a deceased person’s estate, which it generally fulfills through a process known as probate.
As any experienced trusts and estates attorney could affirm, going through probate can be stressful for everyone involved, especially the decedent’s dedicated executor who is responsible for managing the probate process on behalf of the decedent’s estate while also managing any potential family dynamics that occur during the probate process. Fortunately, a Woodstock probate lawyer is available to help you make sense of this legal formality and make sure it gets resolved as promptly as possible.
Only certain assets within a deceased person’s estate must go through probate. Under current state law, probate is meant for real estate that a decedent owned, real property like vehicles, personal possessions like furniture and jewelry, and financial instruments like stocks, bonds, and bank accounts owned solely by the decedent with no designated beneficiaries.
However, insurance and retirement accounts with designated beneficiaries, and bank accounts with Transfer on Death or Payable on Death conditions are not required to go through probate, nor are any assets that were put into a revocable trust. Real estate that is jointly owned as “joint with right of survivorship” can also avoid probate when the first owner passes away.
It is sometimes possible to skip probate altogether if an individual died without a will. In these cases, all the decedent’s heirs must file a “Petition for Order Declaring No Administration is Necessary,” affirming through this petition that they all agree on how the decedent’s assets should be divided between them and that none of the decedent’s creditors, if they have any, object to the plan.
When probate does occur, it is the responsibility of the executor named in the decedent’s will or the administrator assigned by the court to serve as the personal representative of the decedent’s estate during probate. Generally speaking, the executor or administrator is responsible for inventorying and valuating all the assets in a deceased person’s estate, using those assets to pay off any outstanding taxes or debts owed by the decedent including taxes, and overseeing the distribution of any remaining assets to the decedent’s beneficiaries or heirs.
Conversely, the court’s role in the probate process is to grant the executor or administrator the authority to take the aforementioned actions by issuing either a “Letters Testamentary” or “Letters of Administration,” respectively, and overseeing those actions to ensure creditors are paid and obligations are met in the priority order prescribed by state law. The executor or administrator is personally liable when assets are distributed in the wrong order. A skilled probate lawyer in the area could offer guidance and support to an executor, administrator, beneficiary, or heir throughout this process.
Probate can be a complex process to go through, whether you have prior experience with trusts and estates law or not. While the general procedures involved in probate are fairly straightforward, the specific requirements of executors and administrators can vary a lot depending on what kinds of assets are contained in a particular estate.
A Woodstock probate lawyer could walk you through every step of this process, ensuring you understand what state law expects of you and what outcomes are likely to occur. Call today to discover how a compassionate attorney could help you.
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