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Who Starts the Probate Process?

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Who Starts the Probate Process?

Dealing with the probate process when a loved one passes away can be stressful and exhausting as there are many steps involved with settling an estate. Knowing what to do can be challenging, especially if you have never experienced probate. You might wonder who starts the probate process and what your role is when a loved one passes.

Probate can be relatively stress-free if your loved one plans for their passing while alive. However, if there is no valid will or estate planning in place, probate can become a lengthy and complicated process. 

Morgan & Morgan’s probate attorneys can take the burden off your shoulders and handle the probate process from beginning to end. We can also deal with complex issues, such as inheritance disputes and litigation against the estate. Contact us now to find out more in a free case review.

How the Probate Process Begins

Probate is usually necessary for settling an estate and involves various steps before the assets can be distributed among the deceased’s legal heirs. In most cases, it is impossible to avoid probate when someone dies. 

The “testator,” the person who made the will, usually names an executor in the will. This individual generally has the responsibility to start the probate process. Probate begins in earnest when the executor files the will and petition in the local probate court.

The Steps in the Probate Process

The probate process can vary depending on which state you live in. However, in general, it includes the following steps: 

1.Filing the Petition With the Probate Court

The first step in the probate process is filing a petition with the probate court and appointing an executor to act on behalf of the decedent’s estate. The heirs and beneficiaries of the estate must receive notice, allowing them to challenge the petition and will. 

What if There Is No Legal Will? 

A will typically names the executor of the estate. However, without a will, the court has to appoint an administrator and give notice of administration to the legal heirs and beneficiaries. The role of the administrator is similar to that of the executor.

2.Inventorying the Estate 

The personal representative has to determine the total worth of the deceased’s estate. This step includes inventorying and valuing all assets of the deceased, which can include: 

  • Real estate
  • Vehicles
  • Bank accounts
  • Mutual funds
  • Stocks
  • Bonds
  • Life insurance
  • Furniture, jewelry, and other countable assets

The executor must also identify debts and liabilities, such as mortgages, bills, and loans. Once the personal representative has completed the inventory, they must file their findings with the court.  

3. Notifying the Deceased’s Creditors

The personal representative or administrator must try to notify all estate creditors. Depending on the state, a Notice to Creditors must be published in the newspaper local to the decedent’s residence. Creditors typically have three months from the notice’s date to file any claims. It is worth noting that the personal representative must compile and file a list of all creditors with the court.

4. Paying Valid Estate Debts 

Three months after notifying the creditors, the executor can move forward with closing the estate by paying all known and valid debts. Any claims received after this date are generally not considered legitimate. Liabilities of the estate can include:

  • Utility bills
  • Medical bills
  • Mortgages and loans
  • Credit card balances
  • Funeral and burial expenses

Debts are generally paid from the cash available in the estate account. However, if the debts exceed the available funds, the executor must sell off assets to pay the remaining bills and debts. 

5. Final Estate Accounting and Taxes

In addition to settling the estate debts, the executor is also responsible for filing the final tax return and paying taxes. Once the personal representative has assessed all assets, taxes, and liabilities, they must submit the final accounting records, which should include:

  • The estate’s assets
  • Payments made to creditors
  • Probate fees
  • Attorney’s fees
  • The personal representative’s fee

6. Distribution of Assets Among Heirs and Beneficiaries

Once the final accounting records are submitted and approved, the estate’s remaining assets are distributed to the beneficiaries and heirs according to the decedent’s last will. The applicable state laws decide how the assets are distributed if no valid will exists. 

7. Closing the Estate

After distributing the assets, the personal representative must provide the final accounting to the court and close the estate. Closing the estate concludes the official probate process. 

Probate can be deeply unpopular as the process is often complex, lengthy, and frustrating. Sometimes, it can take a year or longer before the heirs receive their inheritance and can move on with their lives. However, having a knowledgeable probate attorney from Morgan & Morgan by your side can make the process as efficient and stress-free as possible. 

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Morgan & Morgan

  • How Can a Morgan & Morgan Probate Attorney Help?

    Seeking advice from a probate attorney can be critical, whether you want to find out who starts the probate process or determine how to deal with inheritance disputes. Our probate attorneys can help with all probate issues, whether you are a personal representative, heir, or creditor of the estate. It is our attorneys’ goal to honor and respect the wishes of the decedents while defending the rights of heirs and creditors. 

    We can help with the entire probate process, including but not limited to: 

    • Starting the probate process by filing the petition in court 
    • Inventory the estate comprehensively
    • Filing last accounts and estate tax returns
    • Distributing assets to heirs and beneficiaries

    Morgan & Morgan’s probate attorneys represent individuals on a contingency basis, meaning you pay nothing upfront. 

  • What Type of Cases Do We Handle?

    Our experienced estate and trust attorneys represent individuals in a variety of inheritance claims. Some common types of probate litigation we handle include:  

    Elder Financial Exploitation

    Elder financial abuse is not uncommon. The National Council on Aging (NCOA) estimates that the losses of elderly victims of financial exploitation could amount to $36.5 billion annually. A person with guardianship or power of attorney may abuse their position to exploit a vulnerable senior financially. As a consequence, the inheritance could be reduced or entirely squandered to the disadvantage of the rightful heirs and beneficiaries. 

    If you believe that your loved one was the victim of financial exploitation, you could have legal recourse.

    Contesting a Will

    Wills can be contested if the testator was coerced or did not have the mental faculties required to make the will. Moreover, a will can also be invalid if it lacks the correct formalities, such as witness signatures.

    In most states, beneficiaries have limited time to challenge a will. Therefore, if you intend to file a will contest, contact Morgan & Morgan as soon as possible for advice and help.  

    Breach of Fiduciary Duty

    Personal representatives are legally required to act in the beneficiaries’ best interests. If they cause financial harm, the beneficiaries could sue and qualify for compensation. Breaches of fiduciary duty can include, among others:

    • Charging excessive administration expenses
    • Violating a state’s probate law
    • Self-dealing and fraud
    • Mismanaging the estate’s assets

    Estate Planning Malpractice

    Various types of estate planning malpractice can lead to a reduced inheritance and other detrimental consequences for the heirs. Some common acts of malpractice include: 

    • Failing to consider estate tax consequences
    • Incorrectly drafting a will or trust
    • Breach of fiduciary duty
    • Negligent funding or administration of a trust

    Attorneys practicing estate planning and probate law must safeguard the interests of their clients and act according to high ethical standards. Estate planning errors may disrespect the wishes of the deceased and cause financial damage to beneficiaries. If you believe a lawyer's estate planning mistake has harmed you, you could have a legal complaint for malpractice.

    Do You Have a Probate or Inheritance Dispute?

    There can be many more instances of inheritance disputes and estate planning malpractice. Heirs may feel that the decedent’s last wishes were not honored or that they were unfairly left out of the will. However, it is worth noting that you have to prove wrongdoing or negligence to have a legal case. Speaking to a probate attorney can help clarify your legal options and the next best steps. 

  • Do I Need to Hire a Probate Attorney?

    If the estate in question has relatively few assets and qualifies for a shortened probate process, you may not need to hire an attorney. However, having experienced legal representation can be critical as state law and probate knowledge are generally required to ensure a correct and efficient process. Especially in cases where family members do not get along and the estate is large, consider hiring a lawyer. Other reasons for working with an attorney include: 

    • There is no will, or several wills exist
    • Family members are legally contesting the will
    • There are creditor disputes
    • The estate holds foreign assets
    • The estate holds businesses or commercial real estate
  • What Are Some of the Most Common Probate Complications?

    Many issues could stall the probate process, including the lack of a legal will and squabbles about the inheritance among family members. Common complications of the probate process include:

    • Unsubstantiated claims by creditors
    • The named personal representative is unwilling or unable to serve
    • Lack of a valid will
    • The will contains ambiguous wording
    • Disputes over the inheritance
    • Inability to locate and contact certain heirs
    • Disputes over selling the family home or business
    • A personal representative breaching fiduciary duty

    Conflicts among beneficiaries can delay probate or lead to lengthy and expensive litigation. Hiring a skilled probate attorney can be critical, particularly in complicated circumstances or when legal disputes arise. 

  • How Do I Avoid Probate?

    Most legal vehicles that could help avoid probate have to be set up while the individual is still alive, such as:

    • Setting up living trusts
    • Holding assets in joint ownership with a spouse
    • Giving away assets as gifts 

    Probate is almost always unavoidable once a person has passed away without having taken prior estate planning action. However, in some states, estates with a relatively low value may not have to go through a complete probate process. 

  • How Long Do I Have to Wait for My Inheritance?  

    The time it takes until you receive your inheritance can depend on various factors, such as the size of the estate and locating all beneficiaries. A relatively straightforward probate process may take only a few months, while more complicated estate matters could take years to resolve. Moreover, any legal disputes, such as challenges to a will, can invariably prolong the process. In many cases, an experienced lawyer can help to smooth out kinks and speed up the probate timeline. 

  • My Spouse Did Not Leave a Will; What Should I Do?

    Unfortunately, not everyone has the time or inclination for essential estate planning. The result could be that their nearest and dearest are in dire straits if the unforeseen happens. 

    The legal term for passing away without a valid will is “intestate.” When your loved one dies intestate, state law determines the distribution of assets. In some states, the surviving spouse automatically inherits assets owned by the deceased. However, in other states, the surviving spouse inherits between a third and a half of all assets, while the remainder may be divided among the decedent’s children, including those from a prior marriage.

    Since complications can arise when your spouse does not leave a will, consider contacting one of our estate and trust attorneys who can help you learn about your rights. 

  • Our Probate Attorneys Are Here for You and Your Family

    Handling a probate process while still grieving for a loved one can feel overwhelming. However, you are not alone. Morgan & Morgan can help. If you have any questions about the legal matters regarding an inheritance, such as who starts the probate process or what to do if there is no legal will, let us know. Our attorneys can advise you comprehensively and protect your inheritance rights. Contact us to determine how we could help with your probate process.

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