What Is Probate?

Before knowing whether or not you need a probate attorney, you should probably know what probate is.  First a Probate Definition: Probate is a mandatory court process in which the state determines what you own when you die, who gets it, and who is in charge of distributing it.
Every state in the U.S. has its own probate system. The process is relatively similar among all states. However, some states have very strict probate laws that can make the entire process much more time consuming and more expensive than in other states, thus making it much more necessary to get a probate attorney.

Do I Need to Hire a Probate Attorney?

Probate Attorneys In Utah - Allegis LawWhat is a probate Lawyer? A probate lawyer is a lawyer that specializes in helping clients through the probate process. If you have recently discovered that you have been named as personal representative or estate administrator of the estate of someone who has passed, you are probably somewhat lost as to what you are supposed to do. Whether or not you need to hire a probate attorney depends on the complexity of the probate estate. Generally speaking, if there is real estate involved, you should probably hire a probate attorney. This is because failing to properly clear title to real estate that is subject to probate can have harsh consequences. Even if there is no real estate, you should at least counsel with a probate attorney to determine whether probate is necessary, which assets are part of the probate estate, and what are the general steps and deadlines you should be aware of during the probate process. While probate attorney fees can seem pricey, improperly handling probate can be even pricier.

What Are the Basic Steps in The Probate Process

These steps are geared toward filing for probate in Utah. The steps are similar in most other states.
First, a few definitions:

• “Estate” – All property owned by the decedent at the time of death.
• “Decedent” – The person who has passed away.
• “Personal representative” or “Estate Administrator” – The person who is in charge of distributing the estate.
• “Interested party” – Any person who is an “heir” at law or anyone named in the will as a “devisee.”
• “Heirs” – Those who would inherit the decedent’s property if there was no will, according to the state laws of intestacy.
• “Devisee” – Anyone that gets something under the will.
• “Letters Testamentary” – A document issued by the probate court, giving authority to the personal representative to handle the decedent’s estate assets.

Step 1: Gathering Information:

Locate the decedent’s will. If the decedent has a will, use it as the starting point. You should find out who is named as the personal representative and make them aware of that fact. They should be the one taking charge and filing for probate. The personal representative should find out who the interested parties are and get their contact information.

Determine what property the decedent owned. Whether or not probate is required depends on what property the decedent owned. Each state has its own probate laws. If you are filing for probate in Utah, probate is required if the decedent owned more than $100,000 worth of assets in their individual name, or if they held real property in their individual name (regardless of the value of the property). There are some exceptions. Real property held in joint tenancy, life insurance proceeds, retirement accounts, and payable on death accounts, for example, are not subject to probate in Utah. Property that is held in a trust is not subject to probate because it is not held in the decedent’s individual name. NOTE: Neglecting to file for probate when it is required is very ill advised, especially when real estate is involved. This only leads to problems down the road.

If the state gives you the option, determine whether to file informal or formal probate. Informal probate is exactly what it sounds like. It is a streamlined, watered down version of probate. The upside to informal probate is that there are fewer filing requirements than with formal probate and thus it is easier and less expensive. The downside to Informal probate is that it leaves the personal representative and the estate open to potential claims from interested parties and creditors for a longer period of time than formal probate. Generally, informal probate is recommended when all of the parties are amicable and there is no foreseeable dispute regarding the will or the actions of the personal representative. However, it is highly recommended that you consult with a probate attorney before making this determination. A probate law attorney will have a better grasp on what the potential liabilities and pitfalls are of filing for informal probate. If you are filing for probate in Utah, you have the option to either proceed informally or formally.

Step 2: Applying for Probate:

NOTE: The probate process requires several filings with technical legal requirements. Before filing anything with the probate court, you should consult with an experienced probate attorney in your local jurisdiction.
File the Application: The personal representative should file an application for probate of the decedent’s will and appointment as personal representative. An original copy of the decedent’s will is required (if the original cannot be found, a copy will suffice). A filing fee is required. Different courts have different fees. For probate in Utah, the probate filing fee is $360.00 (at the time this article was written).
Send Notice to Interested Parties. All interested parties to the will must be notified that an application for probate has been filed and that the applicant is seeking appointment as personal representative. The reason for this requirement is to allow any interested party to object. An objection may be based on a belief that the will is invalid or that someone else is entitled to appointment as personal representative. If no objections are made within the statutory period (ten days for probate in Utah), and there are no other problems with the application, the probate court will issue Letters Testamentary to the applicant. Problems arise where an interested party cannot be found, and thus cannot be given notice. In that case, depending on the jurisdiction, notice by publication will probably be required. With Letters Testamentary, the personal representative can offer proof to banks, title companies, county recorders, etc…that they are legally authorized to transfer and take possession of assets the decedent owned when they died.

Step 3: Giving Notice To Creditors and Managing Estate Assets

Once letters testamentary have issued, there is a mandatory minimum period of time for which the personal representative must give notice to creditors of the decedent’s death and the ensuing probate of the estate. This is usually done through publication in a newspaper in the location where the decedent lived when they died. During this period, creditors (if there are any) will submit claims to the personal representative or the registrar of the court. These claims are usually things like final utility bills, credit card bills, etc… In the meantime, the Personal representative must file an Inventory with the probate court. The inventory lists all of the assets and liabilities of the estate. The personal representative should also be gathering all of the assets of the estate and preparing for distribution. This may include selling real estate, transferring bank accounts, business interests, stocks, etc… This may also include taking possession of personal property (the gun collection, jewelry, home furnishings, tools, etc…). Assuming the notice period has passed and all creditor claims have been submitted, the personal representative then pays the legitimate creditor claims. Before paying creditor claims, it is a good idea to counsel with a probate attorney to determine whether or not certain creditor claims can be “disallowed,” meaning that the estate does not have to pay them.

In some states, during this stage in the process, there are a lot of mini steps and mandatory court filings along the way.  If you are filing for probate in Utah, this part of the probate process is quite streamlined with minimal court involvment.  A probate attorney will help you make sure you are complying with all of the requirements.

Step 4: Distributing and Closing the Estate

Once creditor claims have been paid, the personal representative should make distributions to the devisees listed in the will (or the intestate heirs if there is no will). Whenever a personal representative makes a distribution to a devisee, it is highly advised that they obtain “receipts and releases” from each devisee. In a receipt and release, the devisee acknowledges that they received what they received. The devisee also releases the personal representative from all claims regarding the probate of the estate (it is also advisable to have the devisees waive a final accounting).
Once distributions are made and receipts and releases have been obtained, the estate is ready for closing. To close the estate, the personal representative files a final accounting with the court (unless waived by the devisees) and also files a closing statement. If the estate is being closed formally, the personal representative may petition the court for a final order declaring that the estate has been properly probated and the personal representative is officially discharged of their duties and is no longer liable for anything regarding the probate of the estate (except under claims for fraud or breach of fiduciary duties). This petition usually requires an in court hearing.  It is advisable to hire a probate attorney if the estate is being formally probated.

Probate Attorney

If, after reading this article, you feel that you should hire a probate attorney, make sure that the probate attorney has experience with probate in the state in which you are filing. For example, if you are filing for probate in Utah, you should look for probate attorneys in Utah with experience navigating the Utah probate process.

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