The loss of a loved one is a difficult endeavor that also includes dealing with the distribution of their estate. This entire process can be exceedingly complicated and can benefit from a probate attorney. I regularly receive calls from clients wishing to know more about the probate process, if everyone has to go through it and what role an attorney can play. Here is a basic FAQ to provide you with more information. After reading, I recommend calling my office and scheduling a consultation to learn more.
Does every estate need to go through probate?
Generally Yes, but there are ways to avoid probate. It does not matter if an estate is large or small, probate or some variation of it is part of the process because it allows for certain legal requirements to be met. However, the complexity or duration of probate is different for everyone and estates with low values typically get resolved rather quickly.
What does the probate process do?
WHEN A WILL IS PROBATED, creditors are given notice that the deceased has passed so they can make a claim against the estate. It also allows an opportunity for heirs NOT MENTIONED IN THE WILL to come forward that may make a claim to the estate. There is an official process for providing notice and a time frame for which people need to come forward if interested in doing so.
The will also goes into the record during probate which provides the opportunity for viewing and contesting if anyone chooses to do so.
Why can the will be contested?
A will is a legally binding document. However, many wills are ambiguous in nature and do not clarify how to distribute assets in a way that avoids starting a contest. Additionally, there may be more than one version of the will, which further creates disputes. Finally, what the deceased tells someone about their possessions may be different than what is in the will.
These are some reasons that one can contest a will, AND THE RESULT MAY BE THAT the court will ultimately decide on it is final interpretation.
What happens with creditors?
Creditors have a set period of time in which to make a claim against the estate. If they fail to do so, they are unlikely to be able to recapture any debts in the future. The exception to this is secured assets. For instance, if the deceased has a mortgage that is no longer receiving payments, the remaining family members OR APPROPRIATE DESIGNATED PERSON can foreclose on that asset.
When can funds be disbursed?
Once the time frame for creditors and heirs to make claims passes, the court will then need to make rulings on any disputes among heirs. After that is done, the assets CAN be dispersed according to the will and the judgments of the court. The length of time that this process takes depends on whether there are disputes or if everything is agreed upon by all parties involved.
Working with an attorney can sometimes speed the process along by avoiding any procedural errors.
How can I get help?
If your loved one has died and probating A WILL IS NECESSARY, call my office and schedule a consultation. Once retained, I can direct the process.
NOTE: This is for informational purposes only and does not constitute legal advice.