Horowitz LaPointe, 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.
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
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.
general outline of what the legal representative must do
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
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?
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.
returns are filed and accounts prepared. Then, finally,
the estate property can be transferred to its new owners
Who is responsible for handling probate?
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
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.