Probate is a legal procedure that ascertains your death and nominates a fiduciary to oversee and marshal your assets according to your Last Will and Testament. If no Last Will and Testament was left behind, state inheritance laws and resulting taxes will be applied via intestate laws. Probate is overseen by the Circuit Court in the county where the decedent last resided. A probate proceeding aids in the transfer of probate assets to beneficiaries named in the Last Will and Testament or heirs-at-law in an intestate proceeding. The Probate process can be costly, time consuming and burdensome depending on the assets involved. Probate assets include assets owned solely by the decedent. Jointly held assets, assets, assets held in trust, and assets with a named beneficiary (for example: life insurance or an IRA with living beneficiaries) are not probate assets.
In order to access these assets, the executor (an individual nominated by the Last Will and Testament) or personal representative (an individual appointed by the court) must be sworn-in with the clerk in the county where the decedent last resided. They will receive a certificate from the court known as a “Certificate of Qualification” or “Letter Testamentary.” The executor will then present this certificate to the financial institution where the account is held and set up an estate account to collect and marshal all probate assets. At this time, the executor will pay all bills, distribute assets to beneficiaries, and file certain documents.
The probate process can be lengthy and time-consuming. The county will require certain filings until the estate is closed. Examples of filings include notice to heirs at law, an affidavit certifying notice, an inventory of all probate assets, and an accounting each year until the estate is liquidated. If taxes and bills are due, the executor will be responsible for making sure these get paid. Any probate assets also become a public record and are subject to creditor claims.
This process can be overwhelming, complicated and time-consuming. At Alison Mathey Lambeth Law, we will help guide the executor or personal representative through all the nooks and crannies of the complicated probate process to make it as painless and as quick as possible.
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