Probate Frequently Asked Questions

Probate is designed to create a “final accounting” upon death. It is the legal process of “proving up” a Will, or verifying that a Will is valid, takes place in one of two instances. First, if a person dies leaving behind a Will, or second, if the deceased has died intestate, that is, has not left behind a Will or estate plan of any type or the Will cannot be found.

Depending on the complexity of the estate and the thoroughness with which accounting has been carried out before death, probate can either be a relatively simple task or a daunting one. Be aware that no matter the situation, probate may be a lengthy process often taking months or possibly years to play out, and one which may take a considerable amount of an executor’s time.

To summarize the process, probate can be broken into six basic steps:

Validation of the Will
Appoint executor
Inventory estate
Pay claims against the estate
Pay estate taxes
Distribute remaining assets

Each of these steps involve legal documentation and validation, and more importantly, proper accounting each step of the way.

Probate begins and ends with the special Probate Court set up in each state to handle estate issues. (Sometimes known as the Orphan’s or Chancery Court in certain states.) All actions taken regarding the estate are accountable to this court, and must be noted and reported regularly. This court is staffed by special judges qualified to oversee estate resolution issues.

If you are a relative of the deceased, this is simple in most states. To transfer the title of vehicles owned by the deceased, simply take the death certificate to the DMV, and perform the transfer, paying whatever fees they require. If not a relative, bringing along the will and or any trust documents indicating your status should be sufficient.

Social Security will continue to send out benefit checks until they are notified of an individual’s death. The executor/spouse/trustee should contact the local Social Security Administration office and notify them of the death, or if a benefit check is received, send it back with a letter notifying them. This is important. If checks continue to be deposited, the recipient can incur liability later when Social Security learns of the recipient’s death.

There are a lot of misconceptions about various estate planning issues. One of the questions we get is, “Can’t I just put my son or daughter’s name on the deed or the bank account to avoid probate?”

That is one of the worst things you can do from a tax standpoint. Call our office or come in for a free consultation to get your questions answered.

There are a lot of misconceptions out there about estate planning. One of the questions we get is “Can’t I just use a transfer on death account to avoid probate?” Keep in mind, Transfer on Death does not deal with a lifetime disability issue and so we are not fans of Transfer on Death accounts. Give us a call to come into our office for a free consultation at (317) 684-1100.