The probate process takes place after a person’s death. The decedent’s will is presented to the clerk of court in the county of his or her residence. If the will has been properly executed and the court accepts the will, the court will require the executor to sign an oath to carry out his or her duties in that fiduciary capacity. The court will then issue one or more Letters Testamentary, which are documents with the Clerk of Court’s embossed stamp on it which appoints the executor and is used by the executor to prove his or her authority to act on behalf of the estate of the decedent.
Banks and other institutions will require the executor to give them an original Letter Testamentary for their records to have proof of the executor’s court-appointed authority. The executor will publish notice to creditors in a legal newspaper, gather the decedent’s assets, determine what debts there are, file inventories of the assets and debts, pay the debts and distribute the property to the beneficiaries according to the terms of the will. A will can be challenged in a proceeding called a “caveat” proceeding, although this is not typical.
Avoiding probate might be a goal for some people who:
- do not want the contents of their estate disclosed in the public court record in the probate court,
- want to avoid having their property tied up in the probate process and
- who want to decrease the chances of having a caveat proceeding
Avoiding probate can be particularly important if you own real estate in more than one state because, if you do, then there will have to be a probate in each such state where the real estate is located, which is expensive. The living trust is one of the mechanisms used to avoid probate, along with the forms of ownership listed above in paragraph 1(B).
Surviving spouse expedited probate.
One consideration in deciding whether to have a living trust is that a surviving spouse can elect to go through an expedited probate process if all the property of the decedent is left in the decedent’s will to the surviving spouse and the survivor spouse assumes all the debts of the decedent and executes and files an affidavit with the court to this effect. There is then no need to publish notice to creditors or hand out gifts to other persons.A qualified Estate Administration lawyer can help you avoid common probate pitfalls and alleviate other burdens generally coinciding with the death of a loved one. When you are in need of an experienced probate lawyer, David can help. Call for your estate administration consultation today.
