What is Probate? When is Estate Probate Needed?Posted on October 19, 2015 by ECR Louisville in Blog, Elder Law
What is Probate? When is Estate Probate Needed?
Probate is the legal process by which most of your assets pass to your heirs at your death according to the directions you set forth in your Will.
The Estate Administration process begins when a person, usually an estate attorney, completes a Petition for Probate and files it with the Probate Court in the county where the deceased lived. The Petition is a form that lists who died, includes some personal information about the deceased, a list of the next of kin, identification of the person asking to be Personal Representative and an approximate listing of the assets of the deceased as best as can be determined at this early stage.
The Estate Probate papers are filed along with the original Will [copies are almost never allowed] and a Court date is set. If everything is in order, the Judge appoints the Personal Representative [who used to be called the Executor]. He or she receives a Certificate of Qualification. This is the legal document that allows the Personal Representative to speak
for the estate, gather all financial assets, pay all bills and eventually distribute the remaining assets to the stated beneficiaries. There is a six month period after opening the estate for creditors to file claims. Since it is unknown what claims might surface, distributions are generally not made to beneficiaries during this six month period.
It is important to know that not all of your assets will pass by your Will. Assets that are held in joint ownership with right of survival [such as a house or bank account with a named beneficiary], life insurance policies, IRAs, paid on death accounts [POD] are examples of assets that do not pass by Will. It is therefore important to make sure that the assets that do not pass by Will go to the folks you choose. If you do not have a beneficiary designated on your life insurance policies or your IRA, or the beneficiary has died, that asset will usually be paid to your estate and then distributed according to the terms of your Will. If the joint owner of your home or your bank account has died, that asset will also be paid to your estate, and then distributed according to the terms of your Will.
The Personal Representative will need to file various forms, such as an inventory of the assets, tax returns, the distribution of the assets, and an accounting with the Court.
How complicated is the Probate process?
In Kentucky, Probate is easy, fast, and relatively inexpensive. While the Probate process involves a loss of privacy [if anyone wants to take the trouble of going to the courthouse and looking through the file], it does have several advantages over the use of living trusts. Probate helps insure that those entitled to inherit get the proper notice. Potential creditors only have six month in which to file a claim when a Will has been Probated, a much shorter time than applicable to assets passing through a living trust. In Probate, the actions of your Personal Representative are monitored by the Court through various inventories and accountings. In situations where there is mistrust or rancor, the protection of surety bonds and Court oversight are particularly beneficial to both the Personal Representative and the beneficiaries.
If you have questions or would like to schedule a consultation with an estate attorney, please feel free to contact us at our Louisville office, we’re here to help with the estate administration process.
920 Dupont Road, Suite 200
Louisville, Kentucky 40207
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