We’ve all heard the old saying: “you can’t escape death and taxes.” Understandably, most hesitate when confronted with our own demise. However, at some point, we all have faced the loss of a loved one and amidst the emotional grief, there are often a myriad of practical and logistical details which must be cared for by someone.
Death often leads to probate. For some probate is scary, but it does not have to be. 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, perhaps by having a trust, it is the necessary legal process used to divide property and determine how all expenses are paid after death. Probate is designed to be efficient, thorough and effective but can take time.
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 their 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 to potential creditors, heirs and other “interested parties.” Notice publications are made in the local newspaper and individuals have four months to make claims against the estate or to contest the will. After the four months have passed, the personal representative can distribute assets after judicial approval.
Like most legal issues, anyone can handle a probate on their own. However, even the most seemingly simple probates can be daunting and all too often, unexpected issues arise. If you need assistance with a probate, estate plan or trust, please reach out as we are glad to assist.
Robert (Bob) Good and Scott Bucy are attorneys with the law office of Good, Bucy, Elson and Drescher that specialize in estate planning, probate and business law. Contact them at their Ashland office at (541) 482-3763.
Serving Southern Oregon and Ashland since 1973.