The death of a loved one is likely the most difficult event a person will ever have to endure. The emotional hardship and confusion in the days after the death are difficult for the family and friends of the decedent. Family members, especially those responsible for the decedent’s affairs, are uncertain how to handle many of the issues that arise after the death and need someone to help them handle the details. Part of the role of a probate attorney is to clear up the confusion and assist the family in handling any problems.
After the immediate concerns are addressed, a probate attorney works with the personal representative (executor) and other family members to administer the decedent’s estate and wrap up all of the decedent’s affairs.
How the estate is handled depends in large part on the nature and value of the estate assets, the number of creditors, the specific provisions of the decedent’s Will or Trust, and how long ago the decedent died. If the decedent had no assets in his or her sole name as a result of adequate estate planning, the estate may not require an administration.
However, if the court is required to oversee the administration of an estate, one of three basic types of administration will be used: formal administration, summary administration, or family administration (disposition without administration). Summary and family administration are used in Small Estates.
For those estates that do require a formal administration, there are many rules and procedures which must be followed. If the decedent had a Will, it must be filed with the court. The court will appoint a personal representative who is responsible for administering the estate. Beneficiaries must receive notice of the administration and creditors must be given notice and opportunity to file a claim against the estate. Homestead and exempt property must be designated to receive protection from creditors. Once all the creditors are determined, the personal representative must generate a final accounting and make distributions from the estate assets, paying creditors and distributing other assets to the beneficiaries.
If the decedent did not have a Will, that is to say he or she died in testate, there are a few more steps involved.