A probate is conducted when a person has died, and has property or assets that need to be administered and transferred to the heirs and beneficiaries.
A person will need a probate whether they have a Will, or whether they die intestate (without a valid Will). Sometimes a probate is even needed if a person has a trust.
Sometimes, if the property and asset values are small enough, a Small Estate Affidavit can be filed by a Claiming Successor (a person with an interest in the estate). A small estate proceeding can be simpler and cheaper than a full probate. However, a small estate preceding is only suitable in the simplest of cases. Discussing the matter with a skilled elder law attorney can be helpful, because if a small estate affidavit is filed in a situation where complications later arise, the process of converting to a full probate can add significantly to the cost.
After a probate is filed, the personal representative (executor) posts notices in the local newspaper, and takes other steps to identify people who may have claims against the estate. Claims can include bills for goods or services provided to the person who has died, if those bills were not paid before the person died. Claims can also include any lawsuits or other such claims that may exist against the decedent.
Sometimes it can be wise to file a probate even if the estate has no assets, to cut off claims of creditors. The survivors of individuals who have been in an automobile accident, or who have practiced in a profession (such as doctors, architects, etc), within ten years before their death can find that cutting off such possible claims can be very important.
If claims are not cut off through a probate, sometimes these claims can surface years later, and assets which have been distributed to heirs or beneficiaries may be pulled back into the estate to pay off these claims. No one wants this to happen, especially the heirs and beneficiaries who have received, and spent, this money.
Once all creditors have been identified, and paid (if there is sufficient money), and all other issues have been resolved, a probate is usually closed with an order or judgment from the court confirming that all necessary steps have been taken, confirming that all appropriate bills have been paid, and the like, and confirming that the proposed distribution of the remaining assets to the heirs and beneficiaries are appropriate.
The personal representative or executor is then discharged by the court, and the case is closed.
Steven A. Heinrich
Divorce & Custody
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