What is Probate?

When someone experiences the loss of a loved one, it can be a very difficult time. As if the loss was not enough, add to the grief the prospect of being nominated to handle and close the affairs of that person, making all the decisions that need to get made while being tugged in different directions by everyone from the funeral director to Uncle Henry, and then having to navigate through the court system; this can be quite intimidating.

Probate is the process by which a nominated personal representative or executor, acting in a fiduciary capacity, transfers title of a deceased person's assets to designated beneficiaries. Those beneficiaries are either chosen by the deceased through designation in a will or trust or by intestate succession. In essence, to transfer title of property from the deceased to the beneficiaries, the probate process substitutes a judge's signature to accomplish a transfer in place of the deceased person. For example, to transfer title to real estate while you are alive, one signs a deed over to another. However, if the owner is deceased, there would be no one to transfer title but for the probate judge's signature, and hence the need for probate.

Further, many people do not understand that, if they accept the appointment to act as personal representative or executor, they become legally responsible to fulfill the directions of the deceased person. They stand in a fiduciary relationship to the beneficiaries. If one fails in this endeavor, they are accountable to the other beneficiaries and could be liable for any civil or criminal prosecution damages. Thus, it is important to secure the deceased's property immediately.

It also is advisable to obtain the assistance of an attorney's office. The attorney who assists you will need the nominated personal representative to initially take the following steps:

1. Order at least ten (10) death certificates from the funeral director.
2. Locate the original Last Will and Testament.
3. Locate veteran's papers.
4. Locate life insurance policies and annuities.
5. Locate the last five years tax returns.
6. Locate birth certificates and marriage license.
7. Locate real property deeds and any bank statements.
8. Secure estate assets.
9. Keep an accurate record of last illness expenses and burial costs.
10. Compile a list of children and beneficiaries including address and social security number, if known.
11. Maintain records of income received and expenses/taxes paid during the period of administration.

And, if the decedent was living alone:

1. Remove important documents and valuables to a safe location.
2. Notify utilities and landlord, if applicable.
3. Advise post office where to send mail.