A will is a written document that specifies how one should divide and dispose of their property after passing away. A person creates a choice for the proper distribution of their property. If there are minor children and the issue of their guardianship arises, one can also make the probate.
The probate process is an additional step in the will-writing process. Probate is a legal procedure after a person has passed away to satisfy his legitimate creditors and distribute his assets to his beneficiaries. It is the certified copy of the maker’s will bearing the seal of an appropriate court authorizing the administration of their estate.
Primary duties of a Probate Lawyer
The probate lawyer first submits the probate petition to name a personal representative.
He also manages all other court requirements. He might, for instance, present his case in a will contest to determine the executor. In addition to handling creditors’ claims, he notifies beneficiaries, heirs, creditors, and other parties entitled to notice of the probate.
After finishing all the different administrative tasks, he creates and submits a petition for final distribution. There are details of the personal representative’s activities during his term of administration and the petition to the court. In addition, there is the disclosure of the personal representative’s possession of assets and funds to the heirs in the final petition.
Finally, the lawyer requests permission from the personal representative and instructions from the court to distribute the estate’s assets by the terms of the will.
If someone owns the property in another state, the probate attorney may also work with the lawyer handling the ancillary probate. There may also be non-probate issues that need legal assistance, such as getting, receiving, or obtaining payment of life insurance and managing issues like annuity payments.
Problems to Conduct in a Probate Without an Attorney
A lawyer’s role includes advising the personal representative on their legal obligations and ensuring meeting them. The heirs and beneficiaries of the estate view the personal representative as a fiduciary. This implies that he owes them a duty of care and must put aside their interests to serve the beneficiaries.
Preparing and filing a complete and final accounting of the executor’s activities during his tenure as personal representative is one of the main requirements. This includes details about bank accounts and deposits; cash received money paid out in bills, stock and bond dispositions, gains and losses from sales, sales of securities, and other financial transactions.
Accountings can get very complex. As a result, most personal representatives eventually hire an attorney to handle the accounting task, if nothing else.
In more complicated estates, it’s common practice to hire an accounting firm to handle the basic accounting that is familiar with court accounting requirements. Then, the attorney prepares a petition for the final distribution and accounting after receiving and reviewing the accounting. In this way, the heirs are aware of what transpired with the estate and what is their portion of the will.
Estate Creditors: How one handles them?
First, there is a collection of the deceased’s mail. Then, the executor typically visits the post office to update the address listed for mail addressed to the dead. This way, the executor is provided with items like the decedent’s bills and bank statements.
There must be the publication of notice of the filing of the will in a newspaper with general circulation. Typically, creditors scan the local newspapers frequently for announcements of probates. After receiving the letters, they have 120 days to file a claim in the probate to receive payment.
The Probate Code permits the executor to pay such bills without submitting a creditor’s claim if the personal representative believes the account is a good debt and there is enough money in the estate.
After reviewing the filed creditor claims, the personal representative determines whether or not each claim is legitimate. If he approves it, he adds it to the list of items that will be paid, if not already, at the time of final distribution. And in case he doesn’t, the assertion is deemed false. After that, the creditor receives the notification of acceptance or rejection.
If the request is turned down, the creditor has time to file a lawsuit to collect the debt. The claim is barred if he doesn’t file within that window. In addition, any claim against a decedent made in California is also prohibited if made more than a year after the decedent’s passing.
There is the distribution of the deceased’s assets through the legal process of probate. A probate court, which has the legal authority to resolve issues relating to wills and estates, oversees the procedure.
The court will determine the validity of the during probate. It will also designate an executor, locate and appraise assets, and settle the estate’s debts. The beneficiaries and heirs of the deceased will then receive the remainder.
States have different probate laws. For instance, California uses a streamlined process to pass estates under a certain threshold to heirs. The heirs may request that the court “set aside” the estate if the property’s value is less than $20,000. There is also a requirement to fill up the form.
The heirs may file a declaration requesting the distribution of the estate if the estate has a value of $166,250 or less. This is less complicated than the entire probate procedure. However, it is a little more complex than the procedure for a smaller estate.