When a family member, or close loved one, passes away, the grieving process that follows often overwhelms the survivors. Focusing on even the most mundane of tasks can be difficult in the wake of a loss. If you were appointed as the Executor of the estate by the decedent, however, you must find a way to focus on the duties and responsibilities involved in probating the estate. To help prevent costly mistakes, the Lincolnshire probate attorneys at Hedeker Law Ltd. point out several common probate obstacles to avoid.
Understanding the Probate Process
Most people leave behind an estate when they die. That estate consists of all assets, both tangible and intangible, owned by the decedent at the time of death. Probate is the legal process by which those assets are identified, located, valued, and eventually distributed to the intended beneficiaries and/or legal heirs of the estate. If the decedent left behind a valid Last Will and Testament, the individual named as the Executor in that Will is responsible for overseeing the probate process and the terms of the Will are used to determine how the estate assets are distributed. If the decedent died intestate (without a Will), someone typically volunteers to be the Personal Representative and oversee the probate of the estate and the California intestate succession laws dictate how estate assets are distributed. Although the probate process is unique for every estate, common steps in the process include:
- Identifying, locating, and valuing all estate assets.
- Opening the probate of the estate by filing a petition, along with an official death certificate, in the appropriate court.
- Notifying creditors of the estate that probate is underway.
- Identifying, locating, and notifying beneficiaries and/or heirs of the estate that the estate is being probated.
- Reviewing and approving or denying creditor claims.
- Prioritizing and paying approved claims.
- Selling assets, if necessary, to pay creditors.
- Defending any challenges to the Will or litigating any claims made by creditors that were denied.
- Calculating any paying federal (and state, if applicable) gift and estate taxes
- Effectuating the legal transfer of the remaining assets to the named beneficiaries and/or legal heirs of the estate.
Obstacles to Avoid during Probate
Every estate is as unique as the individual who amassed that estate. It stands to reason, therefore, that the probate process is never exactly the same for any two estates. There are, however, some common obstacles you want to avoid when probating any estate, including:
- Locating documents. Most estate plans consist of more than just a Last Will and Testament. Ideally, all estate planning documents are kept together; however, make sure you check with a spouse or adult children as well as the decedent’s estate planning attorney to ensure that you have all the puzzle pieces before you get started.
- Securing assets. This needs to be done as soon as possible after the decedent’s death. You need to get your authority as the Executor established as soon as possible so you can start securing estate assets.
- Notifying creditors. Some creditors must be notified individually while others can be notified via a general notice in the local newspaper. The rules on this vary by state. Make sure you understand your obligations when it comes to notifying creditors of the estate.
- Paying creditors and taxes. As the Executor, you must approve or deny all claims. If the estate lacks sufficient liquid assets to pay all claims, you must decide which assets to sell. To prevent mistakes, consult with an estate planning attorney and make use of professionals when it comes time to sell assets.
- Litigating challenges. If someone challenges the Will, you must defend the Will throughout the litigation that follows. This is not something you want to undertake on your own. You need an experienced probate attorney on your side.
Contact Lincolnshire Probate Attorneys
Please join us for a FREE upcoming seminar. If you have questions or concerns regarding the probate of an estate, or you would like to consult with an experienced probate attorney regarding your role as Executor, contact an experienced Lincolnshire probate attorney at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.
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