What is the Probate Process?

Probate is the legal process for authenticating a deceased person’s last will and testament, reviewing their assets, paying their outstanding debts and taxes, and distributing what remains to their heirs. After an asset-holder dies, the court will appoint the person nominated as personal representative under a valid will to administer the estate of the decedent. In the absence of a valid will, the court will appoint a personal representative to handle probate (in the State of Maryland and the District of Columbia, this appointment is subject to the priority rules of the intestacy statute). Probate law varies by state, but there are steps in the probate process that are common.

Understanding the Probate Process

First, a personal representative is appointed and is normally the person named in the will. It is the personal representative’s responsibility to initiate the probate process. A personal representative can be a family member, a financial advisor, or any person the testator (this is the person who created the will) deemed capable of administering their estate. The personal representative files the will with the probate court, which initiates the probate process. A court officially appoints the personal representative as named in the will, giving the personal representative legal authority to act on the testator’s behalf.

The personal representative’s function is to locate and oversee all of the estate’s assets and to determine each asset’s value. The majority of the deceased’s assets are subject to the probate court, where the deceased lived at the time of their death. Real estate is an exception, and probate may extend to any county where the real estate is located.

The personal representative will pay any taxes and debts owed by the deceased from the estate. A notice of death is published and creditors are given a limited time to make claims against the estate for any money owed to them (in Maryland, creditors have six months from the date of the decedent’s death to file a valid claim. Likewise, in the District of Columbia, creditors have six months from the date of the appointment of the personal representative to file a valid claim. Generally, in either jurisdictions if a claim is not filed with the statutory period, the claim is barred forever). If the personal representative rejects the claim, the creditor may take them to court, where a probate judge will determine the debt’s validity. The personal representative is responsible for filing the deceased’s final, personal income tax returns. The personal representative’s last task, via court authorization, is to distribute what remains of the estate to the beneficiaries.

Probate is required for any asset or account that does not have a joint owner, beneficiary designation, or not in trust. If a joint owner or beneficiary is named then title changes atomically and probate becomes unnecessary.

If a person dies without a will, they are said to have died intestate. An estate can also be deemed instate if the will presented to the court is found to be invalid. The decedent’s assets of an intestate estate follow a similar probate process, beginning with the appointment of personal representative.

The more complex or contested an estate is, the longer the probate process can take to finalize. The longer the process, the higher the cost. The Probate court files an estate’s assets as a matter of public record, so if you want to keep your estate private, it is best to pursue other estate planning options such as a trust.

We are here to help.

At McDonald Law Firm, we can help you determine what planning tools are best for you. We are available for virtual consultations. Call Andre O. McDonald, a knowledgeable Howard County, Montgomery County and District of Columbia estate planning, special-needs planning, veterans pension planning and Medicaid planning attorney, at (443) 741-1088, (301) 941-7809, or (202) 640-2133.

DISCLAIMER: THE INFORMATION POSTED ON THIS BLOG IS INTENDED FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED TO CONVEY LEGAL OR TAX ADVICE.