Setting up your estate for your family is going to be beneficial for them. We don’t plan our estate for ourselves. We do it for our families. It makes their lives easier after we pass. Our attorneys can guide you through the entire probate process. Please get in contact with us as soon as possible so we can help you set up your estate. Call today to schedule a consultation.
What is Probate?
Probate is a legal process that helps the family of a loved one who has passed administer the estate. If your estate has been planned, your family members will only need to validate your last will and testament, which means they will follow the instructions laid out by you and pay any taxes needed.
Having all of this in clear writing helps your family get through this process much easier. In the last will and testament, it is not just who gets what. Your last will and testament also designates who would care for your children if both you and your spouse passed away and who is going to be the executor of your will and follow the instructions that you leave behind.
When people die without a last will and testament, their estate goes to probate court and everything that would’ve been in a last will and testament gets assessed by the court. This makes splitting up the estate a lot harder on your family when they don’t have instructions on how to do that.
What Terms You Should Know
With most litigation there are going to be a lot of phrases and terms that you may not have heard before. Here are some terms that you should be aware of when planning probate:
- Decedent: This term refers to the person who has passed on and whose estate is going through the probate process.
- Executor: An executor can also be called the personal representative and their job is to follow the instructions laid out in the last will and testament.
- Administrator: If someone dies without a will, the court will appoint an executor and that person will be called the administrator.
- Intestate: This is the term that refers to a case where there is no will after someone dies.
- Intestacy: This is a phrase that refers to the laws in the state that dictate how assets are distributed.
- Letters testamentary: This is what the probate court will use to give the executor power to start carrying out the wishes on the last will and testament.
Steps Involved in the Probate Court Process
Here’s a general guide provided by our Albany probate lawyers describing how probate typically tends to work:
First: Open Probate
Your executor for your will cannot immediately start giving things away to the family like heirlooms and inheritance. Legally speaking the first thing that needs to happen is filing a petition with the probate court. During this process they will formally open probate and validate the will. There is no distributing or throwing away of any property of the decedent until step one is complete. Of course, this does not prevent you from going through someone’s house and cleaning gutters or throwing away garbage. This refers to any of their property such as jewelry, clothes, cars, etc.
Two: Send Notices
Once step one is completed and looks good to the court, they will validate the will and appoint an executor or administrator, if necessary. From there, the parties of interest and creditors need to be notified. “Interested parties” refers to the people who would be the next of kin of the decedent.
The executor of the will or the administrator (if one has been appointed by probate court) has the duty of sending notices. They need to send notices to any beneficiaries that were named in the last will and testament including the relatives who would be the ones who would inherit the estate. They also need to send notices to any creditors who the decedent was in debt to.
In the event that the will is uncontested, meaning that everyone involved knows that the will is valid and no one is challenging any aspect of it, then the probate court will simply review and sign some documents and continue on with the process.
In some circumstances, however, one of the next of kin could provide a version of the will that they believe to be more accurate and feel they should honor instead. It might also make the will they have on hand invalid, which requires a lot of review from the court. If there’s a lot of disagreement between the next of kin about what needs to happen to the estate and so on, then the probate court will need to make some decisions.
The creditors will be put on notice and given a time limit in which they can try to claim their outstanding debts. This time limit is typically between 6 to 9 months. The probate court is typically going to weigh in on matters such as these. To fully understand how this is going to work, it’s best to talk to Albany probate lawyers about the process involving debts and how they need to be repaid.
The job of the executor or administrator is to go through the estate and put a value on all the assets based on the date of the death. That just means that, for example, the house was worth three hundred thousand dollars when the decedent died.
Sometimes, it is very easy to determine the value of an asset because it could just mean checking their bank account to see what the balance was at the time of death. Other times, it could just be going to a jeweler to get an appraisal on jewelry. You might want to speak to a broker about stocks and bonds. All of this is important because it lets the court know how much the estate is worth and how it’s going to be distributed properly.
Four: Asset Distribution
The probate process is long and it takes sometimes months to get to the distribution of assets. It’s complicated knowing how you’re going to sell the house if you need to and setting up an inheritance for minors and appointing trustees to manage that money. There’s a lot that goes into actually going through with distributing the estate. There are the debts and taxes that need to be paid and accounts that need to be closed. When paying off debts, there is the decision whether or not to keep or sell property, as well. It is a ton of work and, depending on where you live, the executor of a will is entitled to compensation for everything that they do.
Please know that this is an overwhelming process but our Albany probate lawyers can help you through planning all of this. Having this all set up for your family is the best-case scenario.
Five: Closing the Estate
When all these steps are said and done and the assets have been distributed and the executor has been paid, the last thing that needs to happen is closing the estate. This process is fairly straightforward and is going to be public record. It is done by means of a petition that will dissolve the estate. From there, the probate process is finished.
Why You Want to Avoid Probate
The following are some benefits of avoiding the probate process:
- When you name beneficiaries to get assets, it is much quicker and easier.
- Probate court is not free and the cost can be avoided.
- Since the probate process is public record, avoiding probate could mean that everything stays private and won’t appear for anyone just browsing the internet.
There is a definite advantage to creating a last will and testament that lays out a plan about how your state should be split up and who should get what.
Having a last will and testament puts what you want in clear writing. It is a direct communication between you and your family about what your wishes are and what you believe should happen with what you own instead of it going through a court process and perhaps not ending up in what you would’ve thought are the right hands. It just makes the whole process easier on your family.
When you have a last will and testament, it allows you to set aside money to give to a charity or an organization or a school, as well.
If you talk to a Albany probate lawyers to start planning your estate, they can give you the guidance that you need to make an educated decision about whether or not you want to avoid the probate process and how to do that. We can guide you through it every step of the way.
Call Our Albany Probate Lawyers Today for a Consultation
If you are looking for dependable Albany probate lawyers, please call our office as soon as you can to set up a consultation. We will guide you through this every step of the way.