Probate is a process in which a court oversees the distribution of a deceased person’s assets. The court appoints a Personal Representative to gather the assets, pay bills and taxes, and distribute the assets to the decedent’s heirs or beneficiaries.
Probate is necessary when a person dies owning assets such as bank accounts, investment accounts, or a home in his or her sole name. If a decedent’s assets are held jointly with a spouse or other person, probate may not be required because the assets pass automatically to the surviving joint owner. Similarly, if a decedent owns retirement accounts, life insurance, or other assets that have beneficiary designations, no probate is required for those assets. However, in many cases probate is required to transfer property from a decedent to his or her heirs or beneficiaries.
Probate is required whenever someone dies with assets in his or her sole name, even if the person has a Will in place. The benefit of a Will is that it allows a person to decide how the assets will be distributed, and who will manage the process (i.e., who will serve as Personal Representative). However, having a Will does not avoid probate. To avoid probate, a Revocable Living Trust or other ownership arrangement is necessary.
When a person dies without a Will, the probate process is governed by the “law of intestacy.” The law of intestacy is intended to approximate the way most people would want their estate distributed. The court appoints a Personal Representative based on a priority list defined in the law. After payment of taxes and bills, the estate is distributed to the person’s “intestate heirs” (nearest relatives). Of course, the law of intestacy does not always reflect a decedent’s intentions, which is why having a Will or Revocable Living Trust is so important.
The cost and duration of probate varies depending on the value and complexity of the estate, the existence of a Will, and other factors. Will contests and/or disputes with creditors over the debts of the estate can add to the cost of probate and delay the proceedings. Common expenses for an estate include the Personal Representative’s fee, attorney fees, accountant fees, probate court filing fees, and surety bonds. Most estates settled through probate take a minimum of six months if no litigation is involved.
Probate is a detailed process, and the Personal Representative of an estate has several legal obligations. The Personal Representative is responsible for validating the Will with the Probate Court; filing required notices to creditors and beneficiaries; inventorying, appraising, and liquidating assets; paying debts; filing tax returns; and obtaining court approval to distribute the estate assets. As seasoned professionals, we can walk you through the process and ensure that the estate passes smoothly into the right hands.
Edgel Law Group routinely represents Personal Representatives in the probate process. We have extensive experience preparing the required legal documents and pleadings, and we are well-acquainted with the local rules for Oregon courts. More importantly, we understand the stress and anxiety that can result from administering an estate while grieving the loss of a loved one. We’re here to help you manage it. Call us today: