What is Probate?

Probate is the process whereby a decedent’s assets which are held in his or her name alone, are transferred to the beneficiaries pursuant to the terms of the decedent’s Last Will and Testament or to the heirs if the person has no will.

A person’s will provides for the disposition of the assets at death.  It will also name a Personal Representative, who will be the person responsible for administering the estate.  After a person dies, the Personal Representative will Petition the court to open the administration.  Once the Personal Representative is appointed, he or she has statutory obligations and responsibilities to both the beneficiaries and the creditors of the decedent.  The Personal Representative will notify the beneficiaries of the administration and will notify known creditors.  The creditors must file claims in the estate in order to preserve their right to be paid.   The probate process allows for the creditors claims to be determined within a few months, rather than the two year limitations period that they would otherwise have.  When the Personal Representative can ascertain that the assets of the estate will be more than sufficient to pay known creditors and taxes, he or she may consider a partial distribution.   The Personal Representative is responsible for any tax returns for the decedent.  While estate taxes will not be due unless a decedent died with a taxable estate of over 11 million dollars, the Personal Representative will be responsible for the final income tax return and any estate income taxes.    Once creditors and taxes are paid the Personal Representative must account to the beneficiaries (unless the accounting is waived) and then will distribute the assets and close the estate.

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