When a family member or loved one passes away, someone must be in charge of overseeing the probate of the individual’s estate. If you find yourself in that position, either because you were appointed as the Executor of the estate by the decedent or because you volunteered to be the Personal Representative of an intestate estate, you may be feeling overwhelmed at the thought of taking on the responsibilities involved in probating an estate while still grieving your loss. Hopefully, you will retain the services of an experienced estate planning attorney to assist you throughout the probate of the estate. To get you started, however, the estate planning attorneys at German Law have compiled some commonly used probate resources for the Devils Lake, North Dakota area.
Probate for the Beginner
Probate is the legal process that is typically required after someone dies. Probate serves several important functions, including providing a legal framework within which the decedent’s assets are transferred to the new owners as well as ensuring that all creditors of the estate, including tax authorities, are paid. The individual who oversees the probate of an estate is referred to as the Executor and is appointed by the decedent if a Last Will and Testament was executed prior to death. If the decedent died intestate, or without a Will, any competent adult may volunteer to be the “Personal Representative(PR) and oversee the probate of the estate. For more general information on the probate process, the American Bar Association has a section entitled “The Probate Process” on its website that you may wish to read. You may also want to look over the North Dakota State University’s online pamphlet entitled “Wills and Probate” as well as read through the North Dakota Courts Section on Formal Probate.
Probate is typically opened in the county in which the decedent was a resident at the time of death. If the decedent lived in Devil’s Lake that will likely mean probate will take place in the Northeast Judicial District — Ramsey County District Court. Most Personal Representatives (PRs) retain the services of an experienced estate planning attorney to assist during the probate process, particularly if the estate does not qualify for a small estate alternative to formal probate. If, however, you decide to proceed pro se, or without the assistance of an attorney, you will be expected to understand the Devils Lake County Rules of Court as well as the North Dakota and federal laws applicable to the probate of the estate. If the estate qualifies for informal probate, you will find some helpful information on the North Dakota Supreme Court’s Self Help section.
Finding the Right Attorney
If your loved one’s estate requires formal probate, or you are unsure how to proceed with the probate process, retaining the services of an experienced estate planning attorney is your best option. Not only can an attorney guide you through the process, allowing you to focus on grieving, but having an attorney on your side also dramatically decreases the possibility of making a costly mistake. A good place to start is with the American Academy of Estate Planning Attorneys website. The AAEPA is a national organization of attorneys who have chosen to focus their practice on legal issues related to wills, trusts, and estates. Membership in the AAEPA signifies that an attorney has proven experience in the areas of estate planning and/or elder law. In addition, the North Dakota State Bar Association’s Lawyer Referral service may be helpful as well.
Personal Representative Resources
As the Personal Representative of the estate you will have numerous duties and responsibilities throughout the probate process. To get the probate process started you will need to file the appropriate petition with the Northeast Judicial District — Ramsey County Court. When you file the petition you will need the original copy of the decedent’s Last Will and Testament along with a certified copy of the death certificate. You may obtain certified death certificates from the North Dakota Division of Vital Records. You will also likely need to conduct a thorough search to make sure you have identified all real property owned by the decedent. A good place to start is the Property Tax Statement Search section of the Ramsey County website where you can conduct a search of the county property records. As the PR you will also be responsible for notifying all creditors of the estate that probate is underway. Know creditors may be notified individually; however, for unknown creditors you must publish a notice in a local newspaper. To accomplish that requirement, you may wish to contact the North Dakota Newspaper Association (NDNA) to arrange for publication.
Paying Federal Gift and Estate Taxes
Because every estate is potentially subject to federal gift and estate taxes, you will need to be familiar with how to calculate the tax and how to prepare the tax return. The Internal Revenue Service (IRS) website offers a general overview of the federal estate tax. They also have a “Frequently Asked Questions about Estate Tax” section that may be helpful. If it turn out that the estate does owe federal gift and estate taxes, any tax obligation due must be paid before any assets are transferred out of the estate. You should also check with the North Dakota Tax authority to determine what, if any, state level taxes are owed.
If you have additional question or concerns regarding the probate of an estate, contact the experienced Devils Lake, North Dakota area estate planning attorneys at German Law by calling 701-738-0060 to schedule an appointment.