When a loved one dies, all we want to do is focus on our loss and support family members who are also grieving. Unfortunately, this is not always possible for family members who are tasked with planning the funeral and taking care of the estate. If you are the personal representative for an estate, it’s important to know that you do not have to navigate the probate process alone. An experienced estate planning attorney can help you and will even take care of most of the details on your behalf.
What Is Probate?
Probate is the legal process of settling a person’s estate after their death. Even if the person has a valid will outlining who they want to inherit what, probate will still be necessary in most cases. An exception is made for small estates with a total value of less than $40,000—these estates can be settled through a simplified process that does not require the involvement of the probate court.
Accounts or property that are only in the name of the deceased person will have to go through probate in order to transfer the asset to the named heir. This is true even if the will specifies to whom the property should go. Examples of these kinds of assets include:
- Bank accounts
- Real estate
- Stocks or bonds
- Tangible property, such as furniture, jewelry, artwork, and family heirlooms
Some estate assets do not have to go through probate at all. These include:
- Some financial accounts. Accounts such as retirement savings and life insurance policies often have named beneficiaries, so the assets will go directly to the beneficiary.
- Real estate owned as joint tenants with rights of survivorship. When a co-owner dies, the property will remain in the possession of the surviving owner. This includes married couples when one spouse dies.
- Vehicles with multiple names on the title. Any survivors named on the title will retain possession.
- Assets and property held in trust. Trust assets do not technically belong to the person who made the trust, so it is not necessary to transfer ownership through probate. This is one of the benefits of putting property into a living trust.
An attorney will be able to identify which of the decedent’s assets will have to be probated and which will not, which will give you a better idea of the complexity of the estate.
Types of Probate
Depending on the size and complexity of the estate and whether any disputes arise from family members, the estate can be probated through one of the following types of administration:
- Independent administration. If the beneficiaries agree and there are no disputes among heirs or creditors, the estate can be administered through this simplified process. While probate is still required, it is a fairly straightforward process.
- Supervised administration. If there are problems with the estate, such as multiple wills, will contests, fighting among heirs, or complaints about the personal representative for the estate, estate administration will be supervised by the court. This means that the judge will have to approve the personal representative’s actions, which slows down the process considerably.
In general, probating an estate can take anywhere from six to 18 months, depending on whether there are conflicts or problems. Heirs will not take possession of any property or assets until probate is complete.
Role of the Personal Representative
If a person dies with a will and the will names a personal representative, it will be that person’s job to oversee the administration of the estate, including the probate process. If there is no personal representative named, the probate court will appoint one. In general, the personal representative is responsible for the following:
- Notifying heirs, beneficiaries, and creditors of the death and informing them when probate is opened.
- Providing the court with an inventory and appraisal of all probate property.
- Keeping the property safe as probate proceeds.
- Upon completion of probate, distributing property and assets.
- Reporting their actions to the court throughout the process and at the closing of the estate.
Being a personal representative for a loved one’s estate is not an easy job. However, the personal representative can retain an attorney to assist with this important task.
Contact Our Estate Planning and Probate Attorneys Today
From our Cape Girardeau and Perryville offices, the team at Layton & Southard serves clients throughout Southeast Missouri and Southern Illinois. Please contact us online or call our Cape Girardeau office directly at 573.335.3359 to schedule your initial consultation.