The Probate Process

People tend to not like dealing with dreary matters such as preparing for the death of themselves or a loved one. While it is understandable to avoid such topics, it is in one's best interest to take a proactive approach in dealing with their future demise.

The best way to ensure one's estate is handled properly is to make out and publish a will. However, people often put off doing so and then they suddenly pass away, leaving their loved ones "holding the bag." When a person dies without a will, they are said to have died "intestate" and their estate is subject to probate. Unlike when a will is in place, the estate automatically gets divided up among the next of kin, subject to any outstanding creditors. An administrator must be named in order to facilitate the probate process. The administrator is typically a family member of the deceased. When there are multiple family members that are eligible to receive a portion of the estate, such as a group of siblings, one of said siblings is typically elected among the others to act as administrator. To be named as such, letters of administration must be served upon members of the immediate family and need to be signed off on, allowing the named administrator to proceed accordingly. If there is a dispute within the estate, this is where a "stink" is to be made and then the fun of litigation begins within the family as to who is to get what and how much.

Once an agreed upon administrator is set, that person takes the lead in getting all the assets in order, including bank accounts, real and personal property such as houses, land, cars, baseball card collections, etc. Once things are more or less accounted for, time is needed for creditors to make any and all claims they have against said estate. Claims may include credit card debt, outstanding mortgage and car loans, etc. Typically creditors are given 7 months or so to lay claim. Some states and jurisdictions may vary, however. Once creditors are satisfied, the remainder of the estate gets administered to the next of kin, in equal shares. If the bulk of an estate is in real property, such as a house or land, said property would need to be either sold with proceeds going to the family in equal shares, or one or more family members can keep it and "buy out" the others using a fair market value.

The most practical thing to do when a loved one dies intestate (without a will) is to seek advise from an attorney who regularly practices in this area of law. They will guide you through the process and will absolve a boat load of stress from your shoulders. Typically, an attorney's compensation is a percentage of the overall value of the estate. Between 4 and 5 percent is the norm, but again, it differs among states and jurisdictions. Since an attorney receives a percentage of the estate as payment, the administrator usually does not have to worry about coming up with a huge amount of money up front to pay for legal services. Most probate attorneys will require some sort of initial retainer, with the understanding that they will be fully compensated through the estate in the end, after matters are settled.

As stated, being left with the responsibilities of a loved one's affairs after death is unquestionably a stressful and emotionally compromising ordeal. When faced with this situation, remember to take things step by step, one day at a time. If you start feeling overwhelmed, seek guidance and assistance from an experienced attorney who is familiar with the probate process.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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