When someone passes away, they typically have assets that need to be transferred, or debts that need to be settled or resolved. While court clerks in some jurisdictions may help the survivors with the probate process, these clerks are not attorneys and often do not fully understand the ramifications of their advice to survivors. For this reason, it is always best to consult with a probate attorney to determine the proper course of action. Doing this will often save more money than the probate process will cost by eliminating the need for bond, reducing taxes, and effectively transferring the assets without the need for costly litigation.

Though there are certain exceptions to this, there is usually no need to contact the probate attorney before the funeral has been completed, and normally the probate attorney is unable to do anything until death certificates have been formally issued. But it may be helpful to call the probate attorney before the death certificate is issued to discuss any immediate needs, and to schedule an appointment with that attorney for a time after when the death certificate is issued.

Probate is the process of transferring a decedent’s probate assets after settling the estate’s debts. It is typically a 3 step process, including probating the will and appointing a personal representative of the estate, then filing an inventory with the court, and finally, filing an accounting of what was brought in, what was sold, what was paid, and what was distributed and to whom. Depending on the complexity of the estate, this may be abbreviated, or expanded in certain circumstances.

The easiest way to understand the difference is to first discuss what non-probate assets are. Non-probate assets are assets that transfer on their own without the need of the probate court. Types of non-probate transfers include beneficiary designations, survivorship provisions, joint titling, title on death provisions, payable on death designations. In all of these instances, the assets that are titled, or have these designations automatically transfer to other parties via the titling or designation. We do not need the probate court to tell us where these assets go, and in fact, the probate court has little or no jurisdiction over these assets. Probate assets, on the other hand, are those asset that we do not know where or how they transfer, and therefore we need the probate court to determine the proper beneficiary so that the asset can be transferred without any cloud on its title.

No, but it may be beneficial to probate certain estates even if there are no assets to transfer, or debts that need to be paid, to prevent the chance of other debts being asserted, or for qualifying for certain tax benefits. It is important to talk with a qualified probate attorney to determine if an estate is needed in order that the survivors obtain all of the benefits of the probate process that they may be entitled to by law.

While many state laws require that anyone in possession of a will must file it with the probate court within a certain amount of time after death, the cost is frequently prohibitive compared to the benefit of the filing. For this reason, it is imperative that you discuss whether there is a necessity to filing the will in your specific jurisdiction, and whether the benefit is worth the cost.

Intestate succession is the process of transferring a decedent’s assets when they die without a will. Every state has promulgated a statute that governs who is to take assets when a decedent dies intestate. The assets usually transfer first to a spouse, then to children, then to parents, then to siblings, and on and on. But there are exceptions to this general rule in every state depending upon whether the decedent had children and a spouse, or if some children have passed while others have survived. As these statutes often contain subtle nuances, it is important to discuss the outcome of an intestate estate with a qualified probate attorney.

An executor bond, or in some jurisdictions a surety on a bond, is essentially an insurance policy to ensure that the personal representative faithfully pays the debts of the estate and transfers the assets to the proper beneficiaries. Bonds are typically costly and based upon the value of the estate, though a proper estate plan will usually eliminate this need. Also, not all applicants will be approved for a bond, so a discussion with a qualified probate attorney will determine whether bond can be dispensed with, whether the applicant will qualify for a bond, or whether another applicant for personal representative is needed.

Generally, personal representatives are not liable for the decedent’s debts, though certain instances can arise that may give a creditor or beneficiary a claim against the personal representative. For this reason, it is always recommended that the personal representative seek qualified counsel to reduce this risk.

Surviving spouses often have extra rights that are not exercisable by any other heir or beneficiary. For instance, in most states, if the surviving spouse does not like the decedent’s will, the surviving spouse can elect against the will and take their intestate share. Many states have additional benefits for the surviving spouse that require certain elections be made within certain periods of time. For this reason, it is imperative that a surviving spouse consult with a qualified probate attorney to determine the spouses rights and whether to exercise these elections.

If a minor inherits property from an estate, depending on the jurisdiction, a guardianship may be necessitated, which is both cumbersome and costly. For this reason, it is important for all parents with minor children to have a proper estate plan that provides for their minor children without the need for a guardianship over the minor child’s assets.

There are several things that can be done, and some will be based upon whether this person or entity was appointed by will, or by the court through the intestate process. But more often that not, complications arise in administering estates due to a lack of communication. With the aid of a qualified probate attorney, this can often be avoided and the estate administered faster and most cost efficiently.