Once the petition for probate is filed with the court, a hearing may be scheduled where the court will approve a chosen executor or appoint someone to act on behalf of the estate. However, nothing else can be done until the petition is filed.
Anyone who is the executor of an estate or the personal representative can talk to an estate attorney to find out if their estate must go through probate. What It Means to File a Petition for Probate. If it’s determined that the estate must go through probate, you’ll need to file a petition for probate to be opened.
The first step which must be done when someone dies is to find the will and file it with the court. It doesn’t matter if the estate must go through probate. If a will exists, it must be presented to the court when the person dies. To file the will, you will submit it to the court in the county where the person lived.
Take the form and fee to the clerk’s office. Give it to them and ask them to stamp a second copy for your records. This stamp will show the date and time you filed the petition to ensure you met any requirements of the state. When you take this step, you may also have to file a bond with the court.
If no one was named in the will or no will exists, someone can offer to act as the personal representative. In either case, the court must accept the request. If you don’t live in the state where probate must take place, you’ll need to find out whether you can act as executor.
Probate isn’t always needed when someone dies, but it’s required most of the time. Whether probate is necessary depends on state law, which can vary by state. Much of the time, the law allows for certain estates to bypass probate as long as they don’t exceed a certain dollar amount in value.
In other cases, an affidavit may be used in place of probate. For other estates, they must go through probate before the heirs can receive ownership of the assets.
Always take the original documents and three copies of the documents you intend on showing the court. The original document is kept by the court and you are required to give a copy to the prosecutor as you keep one for yourself. The other one is a spare for yourself.
You need to speak confidently in the courtroom. Call the courthouse to find out about the trial date and time.
Plan What You Intend to Say During Trial. At the trial, the intention of the prosecutor is to prove guilt beyond a reasonable doubt. They don’t have to prove that you intended on committing that offense but prove that you did it which is called strict liability.
Before the trial, you must have sufficient evidence necessary to prepare your case for trial. It’s the evidence that will help you defend your case. You can use all kinds of evidence at trial including photos, in-car videos, diagrams, and CCTV footage. Give yourself time to look at the videos and get the photos.
In order to defend you from this case, you have to show other evidence that raises reasonable doubt regarding the prosecutor’s case. Before going to court, write down the main points you intend on explaining to the court.
Pay a visit to the courtroom to know the practical issues. Some courtrooms use the latest technology and others have none. Visiting the courthouse enables you to know how to use the technology there and even address any practical problems.
Some offenses require photographic evidence and other documentary evidence to prove guilt. For instance, if there is a speed camera photo, a photo showing a parking offense, a certificate issued by the arresting police that shows your blood alcohol reading is higher than the legal limit.
Step 1: Filing. Once a will has been located , the first step in the probate process is filing a petition with the probate court requesting that the will be probated. The probate petition asks that the executor formally be appointed to act on behalf of the estate. All heirs and beneficiaries must receive notice that the petition has been filed.
The entire probate process can take a few months to a year or longer , depending on the estate's complexity and the court's calendar.
Probate is the legal process a will must go through to establish its validity before anything can be distributed to the beneficiaries. The testator, meaning the person writing the will, names an executor in the will whose job it is to move the will through the probate process.
Assets include real estate, vehicles, investments, bank accounts, cash, personal property, intellectual property, and pets.
The executor takes legal control of these assets. On the other hand, assets owned by a trust, such as a living trust, are not probate assets and are not distributed by the probate court. The executor or personal representative must inform all known creditors of the estate proceeding.
Once all of the creditors have been paid, the executor or personal representative distributes the remaining assets according to the testator's wishes if there is a will, or according to state intestacy statutes if there is no will.
The executor or personal representative must pay all of the estate's debts from the estate's assets. In addition to pre-existing debts such as loans, mortgages, utility bills, and credit cards, a final tax return must be filed for the estate, and any taxes due must be paid. Funeral expenses must also be paid.
Distributees must be served with a notice, formally called a citation. The citation gives the Surrogate's Court jurisdiction over them. This means that the Surrogate's Court has the authority to determine the rights of the people involved.
Once the Surrogate (the Judge in Surrogate's Court) is convinced of the validity of the Will, the Executor named in the Will is appointed to distribute the estate and carry out the wishes of the person who died. The Surrogate's Court oversees this process.
If the Decedent died without a Will, then an administration proceeding should be file.
Probate proceedings can be very complicated. In many cases, it might be a good idea to get a lawyer.
Beneficiaries who will inherit something under the will must be notified of the probate proceeding. The filing fee is based on the size of the estate. Probate proceedings can be very complicated. In many cases, it might be a good idea to get a lawyer.
If everything goes smoothly, the answer of how long does probate take can be a matter of 6-9 months, but for a more complex estate, the answer can be a year or more. Look through the steps on this site to understand more about what is involved in the probate process so you can better understand how long probate will take for the estate in question. Regardless of your potential desire to speed the process along, patience will be required by the executor and all beneficiaries in the probate process.
The probate definition can be found in our glossary along with other helpful definitions. Simply put, probate is the process of filing a will with the court so the process of closing the decedent’s estate can begin.
It is important to talk with the estate’s attorney to determine your executor role and the attorney’s role in the process. Even if you don’t have an attorney yet, look on the probate court’s website or make a quick call or visit to the court’s office to see what you may need to do. Generally, a legal form or document must accompany ...
Many factors come into play including how valuable the estate is, how organized the estate paperwork is, how the will specifies to distribute items in the estate, debts and liabilities of the estate, what types of assets are in the estate, identity of and ease of locating beneficiaries, ...
This is when an attorney who is familiar with the probate process can be helpful. An estate’s attorney will often handle this step for you. He or she may also pay the filing fee charged by the court, and be reimbursed for it later in the process.
Generally, a legal form or document must accompany the will to file it properly. Most courts also charge a fee to file the will. Remember, you should keep track of this fee because the estate will reimburse you. From Executor Team.
The first step in probating an estate is to locate all of the decedent's estate planning documents and other important papers, even before being appointed to serve as the personal representative or executor.
The probate court will only require a date-of-death value for the decedent's probate assets to be listed on the estate inventory. If the decedent's estate is taxable—on the federal or state level—then the date-of-death values will also need to be established for the decedent's non-probate assets. These assets will include those owned as: 1 Tenants by the entirety 2 Joint tenants with right of survivorship 3 Payable-on-death accounts 4 Transfer-on-death accounts 5 Life insurance 6 Retirement accounts, including IRAs and 401 (k)s 7 Annuities 3
The personal representative or executor must be certain that every single expense of administering the estate and all taxes have been paid before making any distributions, or that enough assets have been set aside to pay the final bills and taxes.
The executor will also be responsible for paying the ongoing expenses of administering the estate, including legal fees, accounting fees, utility bills, insurance premiums, and mortgage payments.
This inventory will also include information about the decedent's debts, such as utility bills, credit card bills, mortgages, personal loans, medical bills, and the funeral bill.
Assets like real estate, personal effects (including jewelry, artwork, and collectibles), and closely held businesses will have to be appraised by a professional appraiser.
The executor should work closely with the estate lawyer and accountant to plan for setting enough assets aside to pay the ongoing estate expenses if administration of the estate is expected to take more than a year. Distributions to the estate's beneficiaries might be made in multiple stages.
Superior Court, conversely, will be much slower: you cannot expect to get to trial short of eighteen months from filing the complaint. The discovery period alone will be six months or more. The court may be more adept at addressing discovery disputes and related issues.
Within twenty days of the matter being filed in Probate Court, either party can remove to the Superior Court of the same county, or to another county if the Superior Court can assert personal jurisdiction over the defendant in that county. If the Probate Court pleading (acting as the complaint) is amended by either party, either party has another opportunity to ask for removal. Rule 71A, M.R.P.P.
Evidence that the testator was unusually susceptible to influence, perhaps because of illness (especially mental illness) or loneliness.
By ancient law, a will known to be in the testator's possession, but which cannot be located, is presumed to have been revoked by destruction of the will by the testator. Title 18-A M.R.S.A. §2-507 (will may be revoked by "being burned, torn, cancelled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction"; In re Estate of Richard, 556 A.2d 1091, 1092 (Me. 1989) (where will which was last known to be in testator's possession, and is not found after death, there is raised the presumption of revocation by destruction); also see In Re Thorpe's Will, 141 N.Y.S.2d 30 (1955) (incumbent upon proponent of will copy to exclude every possibility that original was revoked by destruction.)
Pure probate litigation is commenced in Probate Court, in accordance with Rule 4. Typically, the deputy will serve the Notice (akin to a summons, form N-101) and the petition on the defendant, in hand if possible, or by some other means calculated to give the defendant actual notice of the action . You will have either filed the petition previously or you will file the petition and the Notice (showing the deputy's proof of service) with the Register when you receive the deputy's endorsed Notice.
If you suspect breach of fiduciary duty, get releases from the Personal Representative and obtain the financial records of the victim. Then put together a paper trail showing income into the estate and out. If the funds are commingled, you must of course show in whose account the funds were held. The assistance of an accountant will likely be required, either simply to assist your investigation of for eventual use as an expert witness.
An earlier will may also be evidence, if it suggests that the challenged will represents a logical evolution in the estate plan.