Probate 101

The old saying goes, “You cannot escape death and taxes.”  Nobody likes to think about death. Are you so fearful of death that you have not planned for your own? Also, chances are that sometime in your life you will experience the loss of a loved one.  Amidst the emotional grief and turmoil, there are myriad practical and logistical details that must also be taken care of.

The cold truth is that death leads to probate – usually.  Probate is a scary word for many.  For some the fear is caused by something you read.  For others it is simply intimidating as a big, unknown legal process. Despite the fear associated with the word, probate is the most common way to wrap up the financial affairs of a deceased person.

Probate is not to be feared. Probate refers to the legal process required to settle the financial affairs of a person who has passed away.  Unless the individual planned ahead to avoid probate, the legal process will divide property and determine how all expenses are to be paid.  The process is designed to be efficient, thorough and effective.

Misconceptions of this process are abundant.  One is that if a person left a will, probate is not necessary. This is not true. A will is a very important legal document which determines how a person’s property will be distributed within the probate.

There are two types of probate processes:  One for those who planned and created a will and another for those who did not. Where there is no will, the person’s assets are distributed according to state law, which requires assets to be given to family, in a hierarchical order depending on whether the person has a living spouse, children, parents or siblings.  If on the other hand, the person left a will, assets are distributed as the person directed in the will.

In both, the process begins when a petition is filed and a “personal representative” is appointed by the court to administer the estate (formerly executer).  One of the important parts of a will is naming this personal representative. If no will was left, anyone can apply to the court to be a personal representative, and this job usually falls to a close relative or friend.

When the judge signs an order appointing the personal representative, that person then gains control of the deceased’s assets, can pay expenses of the estate and receive any income into the estate. Notices have to be sent out to potential creditors and to heirs and other “interested parties.” These people have four months to make any claims against the estate or to contest the will.  After the four months have passed, the personal representative can distribute assets to the heirs and beneficiaries and the probate is closed.

Like most legal issues, anyone can handle a probate on their own.  However, even the most seemingly simple probates can be daunting to the non-lawyer, and often times unexpected issues arise.  At our law firm, we will handle the probate process for you, taking another logistical burden off of your plate during a difficult time in your life.

Robert (Bob) Good has practiced law in Jackson County for over twenty years, specializing in family law, estate planning and business law. Contact him at his Ashland office at (541) 482-3763.