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Home » Resources » Frequently Asked Questions » Probate FAQs

Probate FAQs

    • What Happens If Someone Contests the Will?

    • Any “interested” person may challenge the validity of a Will submitted for probate. This typically means a beneficiary, heir, or creditor. Contrary to popular belief, an individual cannot contest a Will simply because the individual is not happy with his/her inheritance (or lack thereof). A Will contest must allege, and eventually prove, a legal ground on which the Will could be declared invalid, such as fraud, lack of capacity at the time of execution, duress, or undue influence. Once filed, the challenge must be litigated. The Executor will defend the Will submitted for probate. Ultimately, if the contestant is successful, the Will is declared invalid and the court looks for another valid Will to use to probate the estate. If no valid Will is located, the estate is probated using the intestate succession rules. If the contestant is unsuccessful, probate resumes using the Will initially submitted.

    • What Are Some Common Probate Steps?

    • Although the probate of every estate is unique, there are some common steps that occur in most probate processes, including:

      • Opening probate by submitting the decedent’s original Will, along with a petition to open probate, in the appropriate court. Typically, probate occurs in the county in which the decedent was a resident at the time of death.
      • Identifying, locating, valuing all estate assets. This may require the assistance of professional appraisers.
      • Identifying and locating heirs of the estate in an intestate estate.
      • Notifying creditors that the estate is being probated. Creditors then have a statutory time frame within which to file a claim.
      • Approval or denial of claims after review by the Executor or PR. If approved, claims are paid out of estate assets.
      • Preparing, filing, and paying federal gift and estate taxes.
      • Preparing the necessary legal documents to transfer the remaining assets to the intended beneficiaries and/or legal heirs of the estate.

    • Who Oversees the Probate Process?

    • If the decedent dies testate, the individual named by the decedent in his/her Will to be the Executor of the Will is the individual who will oversee the probate process. In an intestate estate administration, any competent adult may volunteer to be the Personal Representative of the estate and oversee the probate process. If no one volunteers, the court will appoint someone, usually a local attorney.

    • What Happens If the Decedent Died Intestate?

    • When a decedent left behind a Last Will and Testament it is referred to as a “testate” estate. When no Will was left behind, the estate is referred to as an “intestate” estate. In a testate estate administration, the terms of the decedent’s Will dictate how the estate assets are distributed. In an intestate estate administration, the North Dakota intestate succession laws determine what happens to the estate assets. In that case, only close family members and./or a spouse inherit from the estate as a general rule.

    • Are All Assets Part of the Probate Process?

    • One of the first things that occurs during the probate process is to categorize all assets as probate or non-probate assets. Non-probate assets are not included in the probate of the estate and, therefore, are transferred to beneficiaries immediately after the decedent’s death. Common examples of non-probate assets include:

      • Assets held in a trust
      • Certain types of jointly held property
      • Life insurance proceeds
      • Funds held in an account designated as “payable on death(POD)” or “transfer on death (TOD)”
      • Certain funds held in retirement or pension accounts

    • Are All Estates Required to Go through the Probate Process?

    • Almost all estates are required to go through some type of probate; however, formal probate may not be required if the estate does not involve valuable and/or complex assets. Like most states, North Dakota offers an informal administration alternative for small estates.

    • What Is Probate and Why Is It Required?

    • Probate is the legal process that follows a person’s death. When you die, for instance, you will leave behind an estate that consists of all assets you own and in which you have a legal interest at the time of your death. The law has a vested interest in making sure all your estate assets are accounted for and legally transferred to the new owners. In addition to effectuating the transfer of estate assets, probate also serves several other important functions, including:

      • Authenticating the decedent’s Will (if applicable)
      • Notifying creditors of the estate and allowing them the opportunity to file a claim
      • Litigating challenges to the Will
      • Ensuring that taxes are paid


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August 24, 2020
    

Needed to come in to get specific advice for our needs. The attorney spoke to us in terms we could understand, coming to our level and did not make up feel uncomfortable. They were very considerate and caring. We didn’t feel rushed. We felt like they cared and knew what they were doing.

C.P., Minnesota
Client Review
August 24, 2020
    

We were wonderfully satisfied. Wayne did an outstanding job of explaining, diagramming and answering questions and concerns.

JW & CD, North Dakota
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August 24, 2020
    

They were courteous, efficient, knowledgeable, and trustworthy.

D.T., Minnesota
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August 24, 2020
    

Very helpful. Our children and us are are confident in your group.

-Anonymous, Fargo, North Dakota
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August 24, 2020
    

"Very professional, covered all, expertise, friendly, peace of mind now."

- Anonymous, North Dakota
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August 24, 2020
    

So much of a client's high or low opinion of an organization depends on their welcomed feeling. I felt that every time I visited the office, every person I talked with listened and took action on my concern or questions! They were also very friendly.

~J.R., Grand Forks, ND
Client Review
August 24, 2020
    

From phone calls to signing the final documents I was treated with respect, kindness, and understanding by Wayne & Jenn. Every business that wants their business represented well should have someone like Jenn & Wayne. They both made me feel relaxed and assured I was at the right place at the right time at this time in my life. 

~ Deborah Rucinksi, North Dakota 
Client Review
August 24, 2020
    

All of the paperwork was completed in a timely matter. Wayne was very good in explaining the trust to us. 

~Anonymous
Client Review
August 24, 2020
    

Thank you for taking care of my finances after I am gone. I worried about probate once; hopefully this has been solved. Everyone was very polite and helpful. Thank you Katie for answering my questions, and also Jenn.

- Anonymous
Client Review
August 24, 2020
    

This Avvo rating is killer and so deserved! You are the best brother! The only thing is I think the 10 rating is too low, in my book you go to 11! Congratulations on the award, you should be very very proud. See you at your Holiday party, thx for the invite.

Anthony G., Los Angeles, CA
Client Review
August 24, 2020
    

Everyone at German Law was helpful and pleasant. I felt good about my decision, I thought I was doing the right thing for myself & my family. Wayne took his time and didn't rush, which is good because a lot of this can be over people's heads.

A.W., Red Lake Falls, MN
Client Review
April 15, 2021
    

Excellent

Very interesting, informative and valuable information and ideas.

Valuable information.

RP
Client Review
April 15, 2021
    

5 STARS! Thanks for allowing this to be on a webinar! Very interested in this topic.

Great Estate Planning Guide

SD
November 25, 2022
    

John provided very short turn-around time that we needed. He built an amortization schedule that really met our needs. He was responsive and very easy to work with! Quick and easy!

 

Cammy was also very helpful and professional!

November 25, 2022
    

Really Liked it.
Assisted by John Oelke

November 25, 2022
    

Excellent!

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