Last month, we took a break from talking about probate to have a guest writer. However, I want to tell you about the worst-case scenario of probate, or at least what I consider the worst-case scenario. Before I get into specifics, I’m an attorney, I have to give a caveat: Law is very fact dependent. Probate cases can proceed in many different ways and require many different things depending on the specific case. That being said, a full probate proceeding usually follows this generic procedure:
First, the people applying to be a Personal Representative has to apply for the Letters. It can either be Letters of Administration if there is no will or Letters of Testamentary if there is a will. As part of this process, the court requires the information I mentioned before. If there is a will, the court requires the original will to be submitted. Depending on the specific case, the heirs or beneficiaries involved may have several different forms to sign off. These could include waiving bond and consenting to the Personal Representative being named, among others.
I also want to point out that notice has to go out to the legal heirs, not just the people listed in the will. So this means if someone was disinherited, they get notice they were disinherited and have a court case already filed where they can contest the will.
Once the Letters have been approved, this court order will allow the Personal Representative to collect assets in the name of the estate. From the estate account valid expenses of the personal who passed (burial, bills, taxes, etc.) can be paid.
After the Personal Representative has been appointed and received the Letters, the court requires an Inventory. This is just a list of assets that were held in the name of the person who passed.
Then after all of this initial work, there’s a waiting period. Nothing really happens for about 6 months while the creditors have a period to file any claims.
After the creditor claims period, any claims can be negotiated. Often times, we can set a hearing for the claims and the court will dismiss the claim if the creditor does not appear. What this means is that I often will go to court, the estate will pay me for my time, but the claim does not need to be paid.
Once all of this has been taken care of, the Personal Representative can begin closing the estate. To do this, they need to give notice to all of the people receiving money and an accounting (called the Settlement) of what has happened to the assets. With the consent of everyone involved, some of these formalities can be waived. They can then hand out the money and close the estate.
What this all comes down to is: The money that is supposed to go to the loved ones, ends up paying for court and legal fees. Disinherited family have the opening to contest. Creditors have the opportunity to get paid. The beneficiaries have to wait over (and at best) six months before receiving money. All in all, a situation most people want to avoid.