Losing a family member can be a challenging setback for anyone. Aside from the emotional distress and turmoil, there may be additional stress and responsibility related to handling the properties and assets left by the deceased.
When it comes to managing the deceased’s assets, aside from the will, it also involves probate. This can be a complex and intimidating legal process, and that’s why seeking the help of legal counsel can be ideal for this situation.
What Is Probate?
In simpler terms, probate refers to the legal procedure for the lawful transfer and passing of the deceased’s remaining assets and properties. The entire process involves proving to the court that the creator of the will is deceased and that their will is legitimate.
If the deceased has a will prepared, it’s more likely that they have named or appointed an executor who will oversee and manage the properties they’ve left behind. If this is the case, the executor will then have to file for Grant of Probate to request permission from the court to carry out the wishes of the deceased.
However, in the absence of a will, the spouse of the deceased or a close relative can apply for the Grant of Letters Administration. Once the paperwork has been approved, they will be given the authority to serve as the estate’s administrator, whose roles include the authority to distribute assets to beneficiaries or sell the property, close bank accounts, and more.
You can apply for probate in person, via post, or online.
If you are planning to apply for probate, consider the following steps to help you.
Review The Deceased’s Assests
Before starting the application process, it would be worth reviewing and assessing the value of the assets and properties left behind by the deceased first. By doing so, it will allow you to have an overview of the properties to be distributed as well as their value. More so, assessing the estate’s worth can be to your advantage since some state has probate exemptions for small estates.
For instance, in California, if a property is estimated to be less than USD 100,000, undergoing probate may not be necessary. While in other states, it can be different. Instead of eliminating the probate process, some states might simplify the process.
To help you start, here are some ways to assess an estates’ value:
List down general assets
Listing down all of the assets and properties owned by the deceased allows you to have a general summary. This can help streamline the process of evaluating its value.
Aside from the physical properties, consider noting down monetary assets too. This may come in a form of shares and stocks, investments, and more.
List down joint properties
When reviewing the assets, you’d also have to consider the properties that were acquired by two or more entities. In other words, the ownership of a property is not solely under the deceased’s name.
Prepare Necessary Documents
When applying for probate, it’d be good to prepare the essential documents the court will require from you. If you have engaged the services of a probate lawyer, they can help you with this step.
The following are some of the documents you need to prepare:
- Original and signed copy of the deceased’s will and testament
- Death certificate
- List of beneficiaries and contact information
- Property deeds and titles
- Insurance policies
- Financial accounts and records
- List of assets and debts
- List of current bills and expenses
- Other legal documents such as income tax returns, prenuptial agreements, and more
Moreover, if the deceased owns a company, it’d be ideal to prepare the following documents as well:
- Business licenses
- Business records and transactions such as financial records and contracts
- Partnership documents
File Probate Application
In practice, only specific people are considered legally allowed to apply for probate.
As mentioned earlier, if a will is present, the executor appointed by the deceased is expected to apply for probate. After the court approves the Grant of Probate, the executor can then start distributing the deceased’s assets and properties based on what is stipulated in the will.
If there is no will, a petition is filed for estate administration, and a notice is sent to all legal heirs. The petitioner asks the court to designate them as the estate’s representative, similar to an executor.
After filing for probate, the executor or next of kin must notify all legal heirs, beneficiaries, and creditors that the deceased’s assets and properties have been placed in probate, as required by the court. Additionally, some jurisdictions may oblige you to post a notice in a newspaper.
Sort Out Taxes
One of the things you have to do when applying for probate is sorting out taxes such as estate tax and inheritance tax. An estate tax is a federal tax computed based on the deceased’s property’s net value, while the latter is a state tax that beneficiaries and heirs must pay once they’ve received the assets of properties.
In practice, the executor must sort out and settle all taxes before being granted probate by the court.
Assets And Properties Distribution
After being granted probate, the executors or personal representatives may then distribute the remaining assets in line with the terms of the deceased’s will or, in the absence of a will, in accordance with intestacy laws. Official ownership transfers via deeds or titles may be necessary for real estate and automobiles.
After distribution, the court will then need a final accounting of the estate’s assets and liabilities, as well as the manner in which the property was distributed.
Probate is a technical legal process that can be complex and intimidating, especially since it may take months or even years to get the approval of the court. With that said, most people opt to engage the services of a probate lawyer to assist them with the entire procedure- from the application even to the post-grant distribution process.
This article has outlined essential things to note, as well as helpful steps to guide you as you apply for probate.