By Dan Barney
Estate Planning and the Law
Many readers comment that simplicity is important. They request concise simple explanations. One of the most frequent areas of interest as well as misunderstanding is the probate process. Just what is it and how does it work?
In old English law it was believed that one role of a government was to protect the citizens. In a sense the probate procedure fulfills that purpose.
Probate survives as a procedure originally implemented by the King of England to protect his citizens from themselves and their greed.
• Probate – Probate is a legal process that protects the interests of an individual after his death. Probate establishes a documented, validated, formal court procedure to establish title to and to transfer ownership of a deceased person’s assets.
• Objectives – The objectives of probate are to:
1. Fulfill the intent of the deceased person, in the manner he has evidenced in a valid written document – a will.
2. Prevent the improper acquisition of assets by self-serving and greedy heirs or claimants.
3. Capture and control the assets of the decedent’s estate so they are not misappropriated, i.e., account for those assets and document that as a formal accounting.
4. Provide for the distribution of those assets in the manner chosen by the decedent.
Methods of Probate – Although the details can be complex, probate basically requires a legal, court filing to determine the scope of the estate, the proper heirs and the proper distribution of the assets. The following are typical elements of probate proceedings:
A petition is filed with the local District Court in the county where the person resided prior to death. The petition confirms several facts that establish the jurisdiction of the court and also define the scope of the estate:
1. Fact of death and name of decedent (include original copy of death certificate).
2. Fact of residency in county.
3. Whether there was a will (if so, file the original).
4. Name of the personal representative or executor.
5. Names of all potential heirs.
6. Approximate size and scope of the estate.
Upon filing, the court will then order a hearing and require that formal notice be provided, not only to all known heirs, but to the public as well.
Such notices are what you will commonly see published in the legal notices of the paper. The goal, is an open and fair opportunity for all interested parties to gain knowledge regarding the death and to present legal challenge and evidence at the future judicial hearings.