If you have lost a family member or loved one, you are going through an emotional time. If you are also responsible for administering the decedent’s estate, either because you were appointed in a Will or because you volunteered for the job, your plate is overflowing and you have an important job ahead of you. If you are a beneficiary or heir of the estate, you undoubtedly want to know what to expect from the probate process ahead. If you have never been through a probate, you may feel intimidated by the thought of it. To help you get started, the Overland Park probate attorneys at Parman & Easterday want to explain some common steps in the probate process.
What Is Probate?
Most people leave an estate when they die. That estate consists of all assets, both tangible and intangible, owned by the decedent at the time of death. Probate is the legal process by which those assets are identified, located, valued, and eventually distributed to the intended beneficiaries and/or legal heirs of the estate. If the decedent left behind a valid Last Will and Testament, the person named as the Executor or Personal Representative is responsible for overseeing the probate. The terms of the Will determine how the estate assets are distributed. If the decedent died intestate (without a Will), someone volunteers to be the Administrator and oversee the probate of the estate, and the state intestate succession laws dictate how estate assets are distributed.
Although the probate process is unique for every estate, common steps in the process include:
- Identifying, locating, and valuing all estate assets. All assets owned by the decedent at the time of death must be accounted for and eventually transferred to the new owners.
- Categorizing assets as probate or non-probate assets. Not all assets must go through probate. Assets held in a trust, for example, bypass probate altogether.
- Opening the probate by filing a petition and official death certificate with the appropriate court. This is done by the Executor if there was a Will or by an Administrator appointed by the court if the decedent died intestate.
- Notifying creditors that probate is underway. Known creditors can be notified personally; while unknown creditors must be notified via publication in a local newspaper.
- Reviewing and approving or denying creditor claims. Creditors have a statutory time period within which they must file claims against the estate. The Executor/Administrator must review all claims and decide if they should be paid or denied.
- Prioritizing and paying approved claims. If the estate lacks sufficient assets to pay all approved claims, claims are paid accordingly to a priority established by law.
- Defending any challenges to the Will or litigating any claims made by creditors that were denied. If someone files a Will contest challenging the validity of the Will, the probate process comes to a halt until the challenge is litigated as the outcome will determine how the estate is probated.
- Calculating and paying federal (and state, if applicable) gift and estate taxes. All estates are subject to federal (and sometimes state) gift and estate taxes. If any are due, they must be paid out of the estate before assets can be transferred to beneficiaries and/or heirs.
- Effectuating the transfer of the remaining assets to the named beneficiaries and/or legal heirs of the estate. The remainder of the estate assets are transferred to the beneficiaries as directed by the Will or state intestate succession laws.
Contact Overland Park Probate Attorneys
For additional information, please join us for an upcoming FREE seminar. If you have questions or concerns regarding the probate process, or if you need assistance during the probate of an estate, contact the experienced Overland Park probate attorneys at Parman & Easterday by calling 405-843-6100 (for Oklahoma) or 913-385-9400 (for Kansas) to schedule your appointment today.