At some point in your life you are almost certain to be involved in the probate of an estate. Your role in the probate process might be the result of being named the Executor of an estate or volunteering to act as the Personal Representative of an intestate estate. If you manage to avoid either of those positions, you could still be involved in the probate process as a beneficiary, heir, or creditor of an estate. If you somehow manage to make it through life without finding yourself in any of those roles, you will still need at least a basic understanding of the probate process so that you understand how it will impact your own estate when you die.
What Is Probate?
When you die, you will leave behind assets. Assets may include real and personal property as well as tangible and intangible assets. All of those assets will make up your estate for purposes of the probate process. Probate is the legal process that is required of most estates after the death of the estate owner. Probate has several purposes, chief among them identifying probate assets, paying creditors of the estate, and eventually transferring assets to the intended beneficiaries or legal heirs of the estate.
Intestate vs. Testate Estates
The manner in which your estate is probated will, to some extent, depend on whether you leave behind a “testate” or an “intestate” estate. A testate estate in one in which the decedent executed a Last Will and Testament prior to his/her death whereas an “intestate” estate is one in which no Will was executed by the decedent prior to death. If a valid Will was left behind, the terms of the Will should determine who the beneficiaries of the estate are and how the estate assets are to be distributed. If the estate is an intestate estate, the legal heirs of the estate must be identified and the North Dakota intestate succession laws will determine which of those heirs will inherit from the estate and in what proportion.
Probate for Small Estates
Like most states, North Dakota has a less formal probate process that can be used if the value of the estate, less encumbrances, is less than $50,000 and there is no real property involved in the estate. All other estates must go through the formal probate process.
Probate vs. Non-Probate Property
Not all estate assets are probate assets. Certain types of assets bypass the probate process, meaning they can be distributed to the intended beneficiary immediately following the death of the decedent. Common examples of non-probate assets include:
- Life insurance proceeds
- Assets held in a trust
- Asset held in a “Payable on Death (POD)” or “Transfer on Death (TOD)” account
- Assets held in certain types of retirement accounts
- Certain types of jointly held property
The Probate Steps
While no two estates are identical, meaning no two probates are the same, there are several steps that are common to the probate of almost all estates, including:
- Opening probate which involves submitting the decedent’s Last Will and testament to the appropriate court and petitioning to open probate.
- Identifying, locating, and inventorying all of the decedent’s assets.
- Identifying and locating heirs of the estate if the decedent died intestate.
- Establishing a date of death value for all estate assets.
- Notifying creditors of the estate that probate is underway.
- Reviewing and approving or denying creditor claims.
- Paying approved creditor claims out of estate assets.
- Litigating any challenges to the estate, usually a Will contest.
- Preparing and paying any taxes due on the estate.
- Effectuating the legal transfer of the remaining estate assets to the intended beneficiaries or heirs of the estate.
The probate process can be costly, both in terms of time and money. For this reason, probate avoidance is a common component of many estate plans. If you find yourself the Executor or Personal Representative of an estate it is in your best interest to retain the services of an experienced North Dakota estate planning attorney who can help you navigate the probate process.
For more information please download our free report “Probate: An Executor’s Role and Responsibilities” If you have additional questions about probate in the State of North Dakota contact the experienced estate planning attorneys at German Law by calling 701-738-0060 to schedule an appointment.
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