At Wade & Horowitz, we assist clients in planning for how their affairs will be handled after they die. We also work closely with the family and friends during the difficult time after death.  We attempt to make the legal and financial matters that must be addressed at that time as simple as possible.  In this effort, we hope to combine sensitivity with professionalism.

 

Below is a brief outline that may help you understand what occurs, from a legal perspective, after someone dies.

 

What is probate

Although the word is used commonly, most people do not really know what is meant by “probate”.  Probate is a legal process that takes place after someone (the “decedent”) dies.  Probate is necessary if property is owned in a way that the decedent’s friends or family cannot access it without obtaining legal authority from the court.  So, for example, if you have a bank or investment account in your name alone, in most circumstances no one (including your spouse) will be able to access that money unless they have the legal credentials they can get only by undertaking the probate process.

Typically, probate involves paperwork and court appearances by lawyers.  (See below on how the probate process can be avoided with careful planning during lifetime.)  The attorney files a “Petition” for the person who will become responsible for the decedent’s estate.  If the decedent had a Will, the petitioner is usually the person named in the Will by the decedent, and the petitioner will be appointed as “Executor” of the Will.  In that case, the property will be distributed as the decedent set forth in her or his Will.  If the decedent did not have a Will, any one may petition to be appointed as “Administrator” of the estate.  Without a Will, the decedent’s property will be distributed to certain members of his or her family.  The people who will receive the property and the amounts each will receive are determined by laws known as the “laws of intestacy”.  Either the “Executor” or the “Administrator” becomes what is known as the “legal representative” of the estate.  The legal and court fees required for this process are typically paid from estate property, which would otherwise go to the people who would inherit the decedent’s property.
 

A general outline of what the legal representative must do is:

• File the Petition for appointment and, if there is a Will, prove in court that the Will is valid (usually a routine matter)
• Identify and inventory the deceased person's property
• Have the property appraised
• Pay the estate’s debts and taxes,
• File an accounting of what has been collected and what has been paid, and
• Distribute the remaining property as the Will or laws of intestacy direct.

How does this probate process work?

The Executor--or, if there is no Will, the person seeking to be chosen by the Court as Administrator--files paperwork seeking approval of the Will (or stating there is no Will) and asking that he or she be appointed as “legal representative”.  The decedent’s relatives, creditors and people named in any Will are officially notified of the death and of the Petition for probate.  Once the Petition is allowed, the legal representative files a preliminary inventory listing the assets and the debts of the estate.  This initial appointment period usually takes about six to eight weeks, but can be longer depending on the circumstances.

The legal representative must then find, secure, and manage the decedent’s assets during the probate process, which commonly takes approximately one year from the date of death. Depending on the contents of the Will, and on the amount of the debts, the executor may decide to sell the estate’s real estate, securities, or other property.  For example, if the Will makes a number of cash bequests but the estate consists mostly of valuable artwork, the art collection might have to be appraised and sold to produce cash.  Or, if the estate has many outstanding debts, the legal representative might have to sell property to pay them.  Or, the legal representative may decide that it is simpler and more desirable to sell the family home rather than to distribute it to five different beneficiaries who are unlikely to want to live together.

Tax returns are filed and accounts prepared.  Then, finally, the estate property can be transferred to its new owners

Who is responsible for handling probate?

In most circumstances, the Executor named in the Will takes this job.  If there isn't any Will, the probate court names someone (called an Administrator) to handle the process. Most often, the job goes to the closest capable relative or the person who inherits the bulk of the deceased person's assets.

Can you avoid Probate?

Some people choose to take the time before they die to organize their affairs in a fashion that avoids the time and cost of having court involvement with their affairs after they die.  This is done most effectively working with an attorney now in order to arrange assets in a way that ensures the property goes to the people you wish to name but in a manner that avoids the need for probate.

Tools for Avoiding Probate include such simple techniques as “payable upon death accounts”, “beneficiary designations” or “joint ownership with right of survivorship”.  Each of these techniques, however, has significant limitations in all but the very simplest situations. Some people choose a more flexible and effective, but more expensive approach by setting up a living trust.  Trusts are often used by people with minor children, adult children who are not ready to manage significant assets, taxable estates, disabled beneficiaries or beneficiaries who may be receiving government benefits or may have creditor problems.    Consultation with an attorney will help you know which approach works best for you.