When a family member or close loved ones dies it is usually followed by a period of grieving and emotional upheaval. If you are in charge of handling the legal aspects of the decedent’s death, namely probating the estate, you will likely be adding another layer of worry to your life during an already stressful time period. If you find yourself in this position, the best thing you can do for yourself and for the decedent’s estate is to retain the services of an experienced North Dakota estate planning attorney to help you probate the estate.
What Is Probate?
When someone dies, he/she leaves behind an estate. The estate is made up of all property, both real and personal as well as tangible and intangible, owned by the decedent at the time of death. In order to ensure that all estate assets are accounted for, located, valued, and eventually legally transferred to their new owners the law requires most estates to go through the legal process known as probate. The person named as the Executor of the estate in the decedent’s Last Will and Testament is typically responsible for overseeing the probate of the estate. If no Will was left behind by the decedent, someone must volunteer to be the Personal Representative. Often, the term “Personal Representative” is used to refer to either and Executor or a volunteer for the role of Personal Representative.
Do All Estates Have to Go Through Formal Probate?
Formal probate can be a costly and time consuming process even for a relatively modest estate. North Dakota does offer alternatives to formal probate for estates that qualify. If the total value of the probate property less the encumbrances on those items of property is $50,000 or under and no real property is involved, you might be able to use a North Dakota Affidavit for Collection of Personal Property in lieu of formal probate.
The Steps Involved in the Probate of an Estate
In order to better understand why you should have an estate planning attorney assist you if you have been named as the Executor of an estate, or you volunteered to be the Personal Representative, consider the following common steps involved in the probate of an estate:
- Opening probate — The first step in the North Dakota probate process is to open the probate of the estate. To do this, the Personal Representative (PR) must petition the appropriate court to be officially appointed as the PR and to open probate. If applicable, the decedent’s original Last Will and Testament must also be submitted to the court.
- Estate assets — The PR must then begin the process of identifying and securing all estate assets owned by the decedent, or in which the decedent had an ownership interest, at the time of death. Soon thereafter the decedent must obtain a date of death value for each of those assets. Often, obtaining a date of death value requires the assistance of a professional appraiser.
- Notifying creditors — Creditors of the estate must be notified that probate is underway. Known creditors can be personally notified by the PR; however, all unknown creditors must be notified by publishing the notice of probate in a local newspaper. Creditors then have a specific amount of time within which to file a claim against the estate or be forever barred from doing so. The PR must then review all claims and approve or deny them. Approved claims are paid using estate assets. If insufficient liquid assets are available to satisfy all claims, estate assets must be sold in order to raise the necessary funds.
- Challenges to the estate — Sometimes, the Will submitted for probate is challenged, or “contested.” I that happens, the PR is responsible for defending the Will submitted for probate. A Will contest alleges that the Will submitted to the court for probate is invalid for one (or more) of several legally applicable reasons. A Will contest cannot be based solely on the fact that a beneficiary or heir is not happy with his/her inheritance, or lack thereof.
- Wrapping up probate – the PR is also responsible for ensuring that any state or federal taxes owed by the decedent and/or the estate of the decedent are paid before the remaining assets can be distributed to the beneficiaries and/or heirs of the estate.
How Can a North Dakota Estate Planning Attorney Help?
Probating even a relatively modest estate can be a time consuming and complicated process that requires a certain degree of financial and legal acumen. Unless you are already familiar and comfortable with the process you risk making costly mistakes. Retaining the services of a North Dakota estate panning attorney to help you probate the estate ensures that the process will go as smoothly as possible and will hopefully be without errors.
For more information, please join us for one of our upcoming free seminars. If you have additional questions about probating an estate in the State of North Dakota contact the experienced estate planning attorneys at German Law by calling 701-738-0060 to schedule an appointment.