Probate of Testate and Intestate Estates
When a loved one passes away without a will and they have assets or property that does not pass outside of the estate and directly to a designated beneficiary, then their estate will have to be probated as an Intestate Estate and will governed by the laws of intestate succession.
If one passes away with a will, then the matter will be probated as a Testate Estate. They are similar to Intestate Estates as to certain actions required, but the intestate estate will take more time due to certain steps and additional court hearings to determine the heirs at law.
The most commons times one has to probate a matter is when a person passes away, even with a will, with bank accounts with no named pay on death beneficiary or the person has real property titled in their name only. If the bank account had a POD beneficiary or the deed was a Joint tenancy with right of survivorship, then probate may have been avoided.
To probate an estate, your attorney will draft a Petition to Open Estate, and will attend a hearing to open the estate in chancery court. Once the estate is opened, the executor or administrator will file an oath and have Letters issued which allows one to act on behalf of the deceased with respect to their assets and responsibilities. Notice will then be given to known creditors of the deceased so they may file a proof of claim. If a proof of claim is not filed by a creditor within ninety (90) days from the notice to creditors, then the estate will usually not have to pay the creditor for the amount owed to them.
Probate is often necessary to have authority to continue a business of the deceased.
If there is real property such as a home or land involved in the estate, then your attorney can file a petition to sell the real property inside the estate. It is sometimes necessary to sell the property inside the estate before the estate closes due to the delay of the probate and to avoid depreciation of assets, upkeep, and insurance costs.
At the end of the probate process, your attorney will file a Petition to Close Estate. This will in effect close the matter. The petition to the court will give an accounting of all assets and expenses of the estate. Priority expenses such as funeral costs will be paid first. Attorney’s fees and costs will also usually be paid at this time. Creditors who filed a timely proof of claim will also be paid at this time. After the deduction of costs and fees, the assets are then given to the heirs at law according to laws of intestate succession or to the named beneficiary of the will as directed by the deceased.
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