If you find yourself in the middle of the probate of an estate for the first time you may be feeling a bit overwhelmed and confused. You are not alone. The probate process can be difficult to navigate given the complex financial and legal issues involved. Whether you have been appointed the Executor or Personal Representative of an estate, or you are a beneficiary, heir, or creditor of an estate, you likely have a number of questions relating to the probate process. The best source of answers for your probate related questions is a North Dakota estate planning attorney; however, in the meantime, consider the following answers to the question “What Are Some Common Probate Questions?”
- What is probate? Probate is the legal process that follows the death of an individual. During probate, the decedent’s assets are identified and valued, creditors of the estate are paid, and estate assets are eventually transferred to beneficiaries or heirs of the estate.
- Why is probate necessary? Probate is necessary to ensure that all assets owned by a decedent are accounted for and eventually transferred to a new owner. Probate also gives creditors of the estate the opportunity to file claims before those assets are transferred and ensures that state and federal taxes are paid.
- Is formal probate always required? No. Most states offer alternatives to formal probate for small estates. The eligibility requirements to use a small estate alternative will vary by state.
- What do I do if I just found out I am the Executor? If you were appointed the Executor of an estate in a decedent’s Last Will and testament you need to secure the estate assets and file the legal documents needed to open the probate of the estate as soon as possible. Most Executor’s also consult with an experienced estate planning attorney right away to ensure that everything goes smoothly during the probate of the estate.
- What should I do if I have the decedent’s Last Will and Testament? If you have an original copy of a decedent’s Last Will and Testament the law requires you to submit that WIll to the appropriate probate court within a specific number of days after being notified of the death. In most states, you only have about two weeks to submit the Will.
- What do I do if we cannot find a Will? If the decedent did not execute a Will prior to his/her death the estate will be probated using the North Dakota (if he/she was a resident of the state at the time of death) intestate succession laws. You may petition to be the Personal Representative of the estate if you wish. The PR serves the same basic function as an Executor but without being appointed by the decedent.
- What happens to the estate assets during probate? Assets that are part of the probate process are, for the most part, inaccessible until the probate process is complete. There are exceptions to this general rule. Speak to your estate planning attorney if you need access to a probate asset.
- Can I use the proceeds of my spouse’s life insurance policy right away? Yes, because proceeds of a life insurance policy are not required to go through probate. Other common non-probate assets include assets held in a trust, certain types of jointly held property, and assets held in a “payable on death (POD)” or a “transfer on death (TOD) account.
- The decedent owed me money. What do I do? Creditors of the estate have a limited period of time within which they must file a claim. The Executor/PR will review the claim and, if approved, pay the claim out of estate assets if sufficient assets exist to pay it.
- How long will probate take? The probate process can take months, even years, to complete. Even a relatively modest estate will typically take at least six months to probate;; however, because each probate process is unique you should check with the attorney for the estate for an estimate.
Regardless of your role in the probate process, it can be a complicated process to understand. If you have additional questions about the probate process in the State of North Dakota please contact the experienced estate planning attorneys at German Law by calling 701-738-0060 to schedule an appointment.