Probate is the legal process that is typically required to follow the death of an individual. If the decedent left behind a valid Last Will and Testament, the person named as the Executor in that Will is charged with overseeing the probate process. If the decedent died intestate, or without a Will, any competent adult can volunteer to oversee the probate process as the Personal Representative of the estate. If you suddenly find yourself in the role of Executor or Personal Representative for the first time, it can be a bit intimidating and stressful, particularly if you are also grieving the loss of a loved one at the same time. At the German Law, we understand the position you are in and the challenges you are facing. In an effort to help, we have prepared a Probate checklist that you can refer to as you fulfill your duties and responsibilities during the probate process.
- Immediate Action – these are things you need to do immediately following notification of the decedent’s death, or after being notified of your role in the probate process.
- Locate an original copy of the decedent’s Last Will and Testament, if applicable
- Identify and secure major estate assets, for example:
- Close financial accounts
- Take possession of vehicles
- Lock up real estate
- Obtain several certified copies of the decedent’s death certificate.
- Start looking for additional estate planning documents, such as:
- Life insurance policies
- Trust agreements
- Letter of Instruction
- Categorize estate assets – all estate assets must be identified and located. They must then be categorized as probate or non-probate assets because some assets bypass the probate process altogether. Non-probate assets may be distributed to the intended beneficiary immediately after the decedent’s death. Common non-probate assets include:
- Assets held in a trust
- Proceeds of a life insurance policy
- Certain types of jointly held property
- Assets held in an account designated as “payable on death (POD)” or “transfer on death (TOD)”
- Most retirement accounts
- Create lists of assets and debts – as you identify assets and debts, create your own inventory of each. Include the type of asset/debt, account numbers or identifying information, and the dollar amount.
- Determine which type of probate is required– Once you have the estate assets identified and located you will need to determine if the estate requires formal probate or may use a small estate alternative to formal probate.
- If the total value of all estate assets, less encumbrances, if less than $50,000 and there is no real property an Affidavit for Collection of Personal Property may be used in lieu of formal probate.
- Open Probate – if formal probate is required:
- Opened in the county where the decedent was a resident at the time of death.
- Must submit an original copy of the Will, if applicable.
- Must include a certified copy of the death certificate
- Prepare and file a petition to probate the estate.
- Ask to be confirmed as Executor or appointed as Personal Representative.
- Retain an experienced estate planning attorney
- Locate legal heirs – if the decedent died intestate you will need to start identifying and locating the legal heirs of the estate.
- Notify creditors –
- Known creditor may be personally notified
- Unknown creditors must be notified via publication in a local newspaper
- Review creditor claims – creditor have a statutory period of time within which to file claims. Those claims must be reviewed and approved claims paid out of estate assets.
- Calculate federal gift and estate taxes – an estate tax return must be prepared and filed and any taxes owed must be paid out of the estate assets.
- Submit final inventory to court, if required.
- Transfer remaining assets to the intended beneficiaries and/or heirs of the estate.
Contact Us
If you have additional question or concerns regarding the probate process, contact the experienced North Dakota estate planning attorneys at German Law by calling 701-738-0060 to schedule an appointment.
