Navigating the tricky waters of probate can be made easier by being well prepared, says Guy B Garner, Senior Attorney, Estate Planning and Elder Law firm, Haiman Hogue, PLLC. —
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Probate is the legal process of administering the estate of a deceased person (both with or without a will) and includes gathering assets, dealing and paying creditors and distributing assets to the heirs or beneficiaries who legally inherit assets from a deceased person’s estate. The process is usually overseen by an Executor listed in the will to carry out a deceased’s instructions (or an Administrator if the person died without a will). If someone dies without a will, a close relative can be assigned as an Administrator through state intestacy law.
Garner advised executors to contact a probate lawyer to better understand probate processes as these can include filing court-related documents, collecting life insurance policies, identifying and collecting all assets and debts and handling tax-related matters.
The process officially begins with a petition filed with a court usually located in the county where the deceased personn resided. Executors should check state laws to know where they stand if they live out of that state or city.
Executors must inform beneficiaries that are listed in the will and notify them about the petition being filed for probate and the court date if they want to lodge objections. Legitimate and identified creditors, such as credit card agencies, also need to be notified.
Garner said: "After the judge has accepted the will into probate and named the Executor, the next step is to put together an inventory of the estate. This includes locating all estate planning documents, the person's assets, such as bank statements, life assurances, property paperwork and bonds, and debts that may stand against the estate's value."
Once the inventory is clarified, executors can settle legitimate debts or personal loans from the estate and file income tax returns, including paying inheritance taxes, if applicable. He said: "Once outstanding bills and creditors have been paid, executors can legally transfer assets to beneficiaries named in the will."
Real estate can be a thorn in an executor's bid to process probate, particularly if a person died intestate (without a will).
A house of a deceased person cannot be sold until the court gives the Executor or Administrator the authority to sell it. In certain instances, the court has to be directly involved in the sale or transfer of the property. It is often advisable to contact a real estate agent for an accurate property value and any recommended renovations. It is also important that you check state laws and more importantly, consult with a professional Probate or estate planning attorney.
In certain contested intestate situations (when a person dies without a will and the heirs are fighting), a court might control the house sale and bidding process. Subject to different state laws and court orders, an Administrator might have to consult a real estate agent, preferably a Certified Probate Real Estate Specialist, to establish a value and market and sell the home. The sale of a house that would usually take 30-45 days can take months when the house is tied up by the probate process.
Garner advises executors and administrators to consult with a Probate or Elder Law attorney on the topic to ensure the right legal path on property disposal is taken. Hiring the wrong attorney can drag the process our far longer than it would take if you hired someone experienced in this area of law.
Name: Guy B. Garner
Email: Send Email
Organization: Haiman Hogue, PLLC. - Arlington, TX
Address: 690 E Lamar Blvd #115, Arlington, TX 76011
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