What is Probate
Most of the time when someone dies, their estate needs to be probated. This a process where the court supervises the distribution of the estate to the proper heirs. This occurs whether a person has a will or not. There are similar situations involving when the property is placed in a Trust. These situations are somewhat different as they often do not involve the court. We can help with both situations.
Certain assets of the decedent may pass to the survivors without going through court, probate, or even through a trust. Those are usually assets held in joint tenancy, tenants in common, or community property. Joint tenancy means that two or more people own a particular asset with the specific provision that should one of the owners die, the entire property passes to the other owner or owners. In a Tenant in Common, each person has a designated portion that passes to that persons heirs while their co-owners interest in the same property passes to their heirs, almost the opposite of the joint tenancy situation. It is common for real estate, especially residences to be held in joint tenancy, tenants in common or community property. Bank accounts are also often held jointly so the survivor takes all and no probate has to be done other than file a certificate of survivorship.
Other assets that can transfer outside the probate process are life insurance, where a beneficiary is usually designated in the policy. There are also provisions for transferring a car without going through probate. And often people will have bank accounts or other financial assets that they can pass by listing it as “POD” which means “payable on death”.
Transfer of joint assets is not necessarily automatic. For example, for real estate to transfer to the surviving owner, a document often called an Affidavit of Survivorship or similar documents needs to be completed and filed with the County Recorder’s office of the county where the property is located. Other types of assets held jointly may require completion of specific forms and usually include sending a certified copy of the death certificate with those forms.
If the deceased person had a Will, the probate process becomes relatively simple. It still takes some time to complete and can become more involved if the taxes come into play. The key to what can be done depends upon the value of the assets to be probated and the type of assets. When dealing with single pieces of property and for those with less value, then a quicker process can be utilized. But such a process does not have as many checks and balances. This process is usually used for smaller estates, while a more formal process is often used for larger estates.
The Will usually designates a person to be the personal representative of the estate. The personal representative will oversee distribution of the assets of the estate and the payment of any outstanding bills. Presumably, the deceased discussed taking over this responsibility with the person named as the personal representative and that person agreed to accept the responsibilities. The law provides for payment to the personal representative for accepting these duties, but sometimes an heir to the estate may waive that fee.
The court will issue “Letters” to the personal representative which give the Personal representative the power to take care of the assets of the estate and make decisions relating to maintaining, selling and/or distributing the property of a deceased person leaving a will and in certain cases not leaving a will. It takes time before such Letters are granted so it is important to begin the probate process as quickly as possible. We can help.
The personal representative will gather together all of the unpaid bills. Creditors have about four months to submit their bills after they have been given notice that the probate has started.
The law prioritizes the importance of these creditors so if there are not enough assets to pay everyone, the law has provisions that will decide who gets paid and who does not.
Once the bills are paid and the time has passed for creditors to submit their bills, the personal representative will be able to distribute the assets of the estate according to the terms of the Will.
If there is no Will, the process is somewhat similar, except that the law has provisions that states who gets the property. Eventually, the probate process will come to a close. The personal representative will give an accounting to the court of all the assets, expenses and distributions. Therefore, it is very important to keep accurate records.
Types of Probate Servcies We Offer:
We handle probate matters on an hourly or on a percentage basis as approved by the court and/or allowed by law. We at the Murrin Law firm believe that fees and costs clients pay have to make sense. It has to be a win-win situation wherever possible. We strive to do that, and we can adjust fee arrangements to accommodate your need in extenuating circumstances. If you have questions, or you would like to have us review your case, and give an estimate, there is never a charge for that. We love to talk about our services, what we do, and why we are good at it. Please Call 562-342-3011