At some point in your life, you will almost certainly be involved in the probate of an estate. This might be because you are responsible for overseeing the probate process or because you are a beneficiary or heir of the estate. Even if you manage to avoid either of those roles, you should still have a thorough understanding of probate for the purpose of creating your estate plan. Toward that end, a Coral Gables estate planning attorney at Stivers Law explains what happens during the probate of an estate.
What Is Probate?
Most people leave behind an estate when they die that consists of all assets, both tangible and intangible, owned by the decedent at the time of death. Probate is the legal process by which those assets are identified, located, valued, and eventually distributed to the intended beneficiaries and/or legal heirs of the estate. If the decedent left behind a valid Last Will and Testament, the individual named as the Executor in that Will is responsible for overseeing the probate process and the terms of the Will are used to determine how the estate assets are distributed. If the decedent died intestate (without a Will), someone typically volunteers to be the Administrator and oversee the probate of the estate and the state intestate succession laws dictate how estate assets are distributed. Although the probate process is unique for every estate, common steps in the process include:
- Identifying, locating, and valuing all estate assets. All assets owned by the decedent at the time of death must be accounted for and eventually transferred to the new owners.
- Categorizing assets as probate or non-probate assets. Not all assets must go through the probate process. Assets held in a trust, for example, bypass probate altogether.
- Opening the probate of the estate. This usually involves filing a petition, along with an original copy of the Will (if applicable) and an official death certificate, in the appropriate court. Probate is initiated by the Executor if a Will was left behind or by an Administrator appointed by the court if the decedent died intestate.
- Notifying creditors of the estate that probate is underway. Known creditors can be notified personally; however, unknown creditors must be notified via publication in a local newspaper.
- Reviewing and approving or denying creditor claims. Creditors have a statutory time within which they must file claims against the estate. The Executor/Administrator must review all claims and decide if they should be paid or denied.
- Prioritizing and paying approved claims. If the estate lacks sufficient assets to pay all approved claims, claims are paid accordingly to a priority established by law.
- Defending any challenges to the Will or litigating any claims. If someone files a Will contest challenging the validity of the Will submitted for probate, the entire probate process effectively comes to a halt until the challenge is litigated because the outcome determines how the estate is probated.
- Calculating any paying federal (and state, if applicable) gift and estate taxes. All estates are potentially subject to federal (and sometimes state) gift and estate taxes. If any are due, they must be paid out of the estate assets before assets can be transferred to beneficiaries and/or heirs.
- Transferring any remaining assets to the named beneficiaries and/or legal heirs of the estate. If assets remain at the end of the probate process, they are transferred to the beneficiaries pursuant to the decedent’s Will or to the heirs of the estate pursuant to the state’s intestate succession laws.
Contact Coral Gables Estate Planning Attorneys
For more information, please join us for an upcoming FREE webinar. If you have additional questions or concerns about what happens during probate, contact the experienced Coral Gables estate planning attorneys at Stivers Law by calling (305) 456-3255 to schedule an appointment.