Although the first thought you have when you find that a loved one is deceased is probably not to call your attorney, it is among the first steps in an estate or trust administration. Taking care of the remembrances, such as a memorial service or funeral, and some time for mourning is certainly warranted and should be your first priority. However, the sooner you consult counsel, the better. Depending on the nature of estate planning done, it may be imperative that you see an attorney within the first few months.
For all the efforts by attorneys to encourage people to engage in sufficient estate planning to avoid probate, the process remains a mystery to many clients. Its purpose is to ensure that the succession of the property a decedent leaves behind is distributed to the correct people. If a person has left a Will, then the decedent’s wishes will be respected; in the event that there is no Will, the state has a pre-determined order for the distribution of property.
In the case of a will, the Executor is typically named. If no estate planning appears to have been completed or if the Executor does not wish to act, any interested party may petition the court to probate the estate and become the administrator of the estate. That person will be responsible for marshalling the assets, keeping track of the inflows and outflows of the estate, filing tax returns, and eventually distributing the assets to the beneficiaries. An interested party is typically the surviving spouse and children. However, if neither exists, more extended family members may initiate the probate proceedings. Additionally, if surviving family members do not wish to administer the estate, they may nominate an administrator.
Prior to filing a petition, the proposed administrator or executor should get an idea of how much the deceased person owned. If the aggregate amount is less than $150,000, abbreviated procedures may be used to wind up the estate relatively quickly. However, in most cases where real property is involved, a complete probate will be required.
The probate process takes a long time, in part because the court does not know the decedent or his family, and in part due to budget cuts. It often takes months before the Court has even approved a person to act as the administrator or executor. Depending on how much of the work has been done in advance, there may be a fairly substantial amount of investigation about the location of beneficiaries and heirs that may need to be completed. Additionally, creditors must be given ample time to make claims against the estate. Then, an additional petition must be filed and processed. All told, the process may take well over a year, although 10-14 months is a reasonable estimate for a simple estate.
The sooner you get the clock ticking, the sooner the ordeal will be over.
In addition to the time expended in probate, the money expended can be substantial. A statutory fee schedule on the gross estate applies to both attorneys and executors or administrators. The probate referee, the newspaper used for publication, and the court filing fees must all be paid out of the estate as well. Avoiding probate through proper estate planning is the best course of action. However, if you find that a loved one has died with a will or without any estate plan, seeking a qualified attorney to represent you through the probate process should be done as soon as possible.
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