What do you know about Probate?

When a person dies, with or without a will, their goods and property are distributed to their heirs and creditors. This process of distribution of goods and property is called probate, and there is a variation of legal steps from jurisdiction to jurisdiction.


Executor of a Will

If the person who has died has a will, then it will name an executor, a person who is designated to see that the terms of the will are carried out throughout the probate process. The executor  could be a child of the deceased or he or she might be other relative, or may be a completely unrelated person. The lawyer by whom the will has been drawn up, if any, can be a valuable resource in guiding the executor through all the legal necessities of probate. The estate will directly pay his or her fee.

Phases of Probate

There are several phases of probate. First an accounting of all the property and assets of the deceased should must be made by the executor. Then the creditors are informed about the death of the deceased and they are notified that they have a specific time frame which is the term of probate in that time frame they must present their accounting to the estate.

Out of assets the estate settles these debts and then the rest of the assets are distributed according to the will of the deceased. If the deceased person has no will then the state law will determine how the assets are distributed according to degree of relationship with the deceased.


Duration of Probate

Usually probate is held open for a specific period of time, such as six months. During this time, creditors must have to bill the estate, and not the heirs, to recover any monies owed. Some less than scrupulous creditors will try to collect their money directly from the heirs. At once they should be referred to the lawyer for the estate or the estate executor. If the debts outweigh the assets of the estate, then it will be determined by the courts that how to distribute the funds to the creditors. On the part of the heirs there is no legal obligation to pay debts that the estate cannot otherwise cover.

Some creditors, such as the major credit card companies, are so involved in bureaucracy that they are unable to get their accounting before the probate close. If this will happen, then they are out of luck; and they cannot require the heirs to pay the debt. You cannot be held accountable for your parent’s debts upon their death, unless you co-signed a loan for a parent. We have seen such cases where the lenders went after the children of creditors to try to recover their losses, even after the close of the estate’s probate. Any such kinds of attempts are strictly illegal and they should be reported to your state attorney.

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