Probate 101

We’ve all heard the old saying: “you can’t escape death and taxes.” But most of us hesitate when confronted with our own death; who likes to think about death? Are you so fearful of death that you have not planned for your own? At some point, we all must face the loss of a loved one and amidst the emotional grief and turmoil, there is a myriad practical and logistical details that must also be taken care of.

The cold (legal) truth is that death leads to probate – usually. Probate can be a scary word mostly because you may not know what it means, or you’ve heard from a friend or an advertisement that it is to be avoided. For others, it is an intimidating unknown legal process.

The word “probate” simply 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, it is the necessary legal process used to divide property and determine how all expenses are to be paid. It is designed to be efficient, thorough and effective.

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 his or her will.

In both cases, the process begins when a petition is filed and a “personal representative” (formerly known as executor) is appointed by the court to administer the estate. One of the important pieces in creating a will is naming a personal representative. If you choose not to leave a will, 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 are required 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 will be 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 all too often, 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.