Did you recently lose someone close to you? Were you also notified that the decedent appointed you to be the Executor of the estate? If so, and you have never before served as an Executor, you probably have a number of questions and concerns about carrying out your duties and responsibilities as Executor. One of the first, and most important, questions on your mind is whether or not you need a probate attorney to help you probate the estate.
Probate Basics
Probate is the legal process that is typically required following an individual’s death. The law requires a decedent’s estate to go through probate for several reasons, including to ensure that all of the decedent’s assets are properly identified and transferred to the new owners. One of the many advantages to executing a Last Will and Testament is the ability to appoint an Executor. The fact that your loved one named you as the Executor to his/her estate shows a considerable amount of trust and faith in your abilities on the part of the decedent. Though every probate is unique, some of the more common duties and responsibilities of an Executor include:
- Identifying, locating, and securing documents and assets. An Executor must act quickly to prepare for the opening of probate. An original copy of the decedent’s Last Will and Testament must be located and certified copies of the decedent’s death certificate ordered. Any additional estate planning documents should also be located and secured. Estate assets must also be identified, located, and secured. A preliminary decision must also be made regarding what type of probate is required – formal or an alternative to formal for small estates.
- Initiating probate. The Executor must submit a certified copy of the death certificate, a signed, original copy of the decedent’s Will, and a petition to open probate to the appropriate court.
- Categorizing and valuing assets. The Executor must obtain a date of death value for all estate assets and decide if they are probate or non-probate assets because some assets bypass the probate process entirely.
- Notifying creditors and reviewing claims. Known creditors may be notified individually. Unknown creditors are notified via publication in a local newspaper. Creditors then have a statutory amount of time to file a claim against the estate. The Executor, must review all claims and approve or deny them.
- Litigating any challenges. If a Will contest is filed, the Executor is required to defend the Will submitted for probate throughout the litigation that will follow.
- Calculating, and paying taxes. The Executor must determine if any state or federal gift and estate taxes are due from the estate. All necessary tax returns must be filed and any tax debt owed must be paid out of estate assets.
- Distributing assets. Finally, the Executor must prepare any necessary legal documents to effectuate the transfer of the remaining estate assets to the intended beneficiaries.
Do I Need a Probate Attorney?
Although the law does not require an Executor to retain the services of a probate attorney, most do for several reasons. Navigating the court system can be challenging for an Executor who is unfamiliar with the rules and procedures, making mistakes likely. In addition, overseeing the probate process can be very time consuming, not to mention emotionally draining when you are still grieving the loss of the decedent. A few of the specific ways in which a probate attorney can help include:
- Providing advice and guidance on the law and the court procedures.
- Preparing and filing all documents that must be filed with the court.
- Locating experts to assist with the probate process, such as appraisers, accountants, and real estate agents.
- Defending the estate if a challenge is brought.
- Ensuring that the estate’s tax obligations are met.
- Assisting with the sale of assets if necessary to pay claims.
- Communicating with beneficiaries and/or creditors when questions arise.
- Preparing all documents necessary to transfer assets to beneficiaries and/or heirs.
Contact a North Dakota Probate Attorney
If you have additional questions or concerns about probating an estate, contact an experienced North Dakota probate attorney at German Law by calling 701-738-0060 to schedule an appointment.
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