This guide will explain the process of one of the more common cases that Estate Attorneys encounter: Probating a Will.
During this time, the client and attorney will begin discussing the strategy moving forward to offer the will for Probate, which requires a formal hearing in a Court of competent Jurisdiction. It may be a District Court, County Court, or preferably, a Statutory Probate Court. This interview will gather all of the information needed to populate the Application for the Probate of the Will, and an examination of the document to ensure that the will is valid. You will want to ensure that your attorney provides you with a receipt for the will as the attorney will retain the original for filing.
The Application will determine what type of administration is being saught. The options are: as a Muniment of Title (No necessity for Administration), Independent Administration (free of Court control) or the Dependent Administration (Court Supervised). The Application will further lay out the place of domicile, age, marital history and probable value of the assets of the Deceased. It will examine the Will's contents and contemplate the appointment of the Executor (the personal representative).
Your presence in Court as the applicant to probate the Will is usually a good idea. The hearing is relatively easy as your attorney will ask you ,usually, leading questions such as the place of residence, date of death and other similar questions as to the Decedent. The Court will, after properly ensuring that the applicant is qualified, appoint an Executor. The Applicant will then take their oath of office and sign their live testimony that has been reduced to writing, often called the "Proof of Death and other Facts". Your Attorney will then either order or provide you with your Letters Testamentary.
The follow up:
Your attorney at your next meeting will have a plethora of information for you, as well as numerous items that will require your attention. No attempt is made here to discuss all issues, but I will highlight what, at the very minimum needs to be discussed. The newly appointed Executor will need to begin the process of "Marshalling the assets of the Estate". This simply means collecting all Estate property, securing it, opining Estate bank accounts and the like. It consists of making demand on persons or institutions who are in posession of Estate property and turning it over to the Personal Representative. Your attorney will begin collecting information for the preparation of the Inventory, Appraisement, and List of Claims that will need to be filed within 90 days of your appointment. Your attorney will file a general notice to Creditors, and discuss any permissive or mandatory notices tospecific creditors. A well experienced Estate Attorney can be exceedingly effective at eliminating a surprising number of creditors as the claims process in an Estate is a minefield for the unwary, and most creditors lack the diligence required to properly follow the corret procedures in the claims process, which is very strict.
Once the Administration has run its course, (the assets have been collected, the proper notices sent, the proper filings made, creditors have been satisfied or barred) you are now ready to follow the distributive wishes of the Will. Your attorney will advise you on what types of accounting you should make to the beneficiaries under the will as well as what types of receipts or releases you may need. Once the Estate has been distributed, your duties have concluded. Your attorney will then advise you, depending upon the type of Administration, as to whether to formally close the Estate or keep it open. Formally closing an independent Administration is rare.
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