How to Start Probate

by / Thursday, 13 February 2014 / Published in Bankruptcy Procedure

When an individual passes away and leaves assets those assets pass to loved ones as either non-probate or probate.  Non-probate assets.  Non-probate assets include real estate and bank accounts specifically recorded as having joint ownership with right of survivorship and assets or trusts with named beneficiaries.  Probate assets are those titled only in the individual’s name and personal effects.   The probate court appoints a personal representative to ensure that the assets are cared for and distributed as intended by the deceased individual in the last will and testament or by intestacy, subject to creditors’ claims, administrative costs, and probate fees.   Estates less $5,340,000 are not subject to taxation; however, estate income during administration may be taxed.

To get started an individual or a creditor needs to file a petition, Form 300ES,  with the court to appoint a personal representative and to  probate the will.   The priority for who may be appointed follows:  1) the person named in the will  2) the surviving spouse/devisee  3) other devisees 4) the surviving spouse (not a devisee) 5) other heirs 6) creditors, after 45 days 7) a suitable person after four months 5) an appointee.  When you are acting as personal representative, you are acting as a fiduciary to the estate and because  a fiduciary is the strictest duty of care recognized by the courts it is important to abide by all of the state’s laws and court’s rules while also creating the greatest benefit to beneficiaries and maintaining greatest efficiency.

The Personal Representative is responsible for completing many probate forms during the probate process.  And for providing these forms to heirs, beneficiaries and, sometimes, creditors.  If you accept these duties, your attorney will explain these forms and help you meet the Court’s information and notice requirements.

The Court will place an ad in a local newspaper that serves to place all creditors on notice to file claims against the Estate assets.  The Court will also issue an Order of Appointment appointing the Personal Representative.  The Personal Representative will receive certified copies of this order and must provide this Order to banks and other institutions for the purpose of administering the Estate assets.

Click here to read more on the duties of the Personal Representative after appointment.

We can help you file a Petition for Appointment as Personal Representative or we can act as Personal Representative in your place.

 

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