Probating the Estate
Probate is the court process used to determine the validity of a Will and oversee the payment of creditors and distribution of estate assets. Even if there is no valid Will at the time of death, the estate will still go through the probate procedure.
If you are the executor of an estate, contact an experienced probate attorney at Helsper, McCarty, and Rasmussen Law Firm in Brookings, South Dakota to help you identify and carry out your estate administration duties.
Despite the variation in state laws, probating the estate generally includes the following functions:
- Petitioning the court to probate the Will
- Sending notice to creditors, beneficiaries and any other interested parties
- Collecting, inventorying and appraising all estate assets
- Collecting any payments, debts and income due to the estate
- Paying any debts owed, and filing and paying local, state and federal taxes
- Distributing any remaining assets to beneficiaries in accordance with the terms of the Will
Most states have a fast-track or simplified probate process for smaller estates that meet certain qualifications. Normally, this process does not require probating the estate before the probate court, but before an administrator, which can cut down on the time and cost of a probate.
Disadvantages of Probate
Time and expense: Probating an estate can be time-consuming, taking anywhere from 6 months to 2 years to complete. If someone contests the validity of the Will, this can increase the duration of the process. Probate also can be expensive, with any probate costs and fees coming out of the estate's funds.
Lack of privacy: Probate matters are part of the public record, meaning anyone can find out the size, contents, and beneficiaries of the estate. This lack of privacy can cause tension between family members.
If someone dies without a Will or the probate court determines the Will of the decedent is invalid, that person is said to have died intestate. Each state has a set of default inheritance rules that apply in the absence of a Will or other estate plan. These rules generally distribute property to the surviving spouse and children first, and then parents and other close family members. The only way to prevent the default rules from determining the distribution of assets is to have a valid Will or trust in place before death.