Today, I’m going to give you an overview of the probate process. This is a process that can be somewhat confusing and scary for people, so I’m here to just kind of give you a general overview of it. After somebody dies, the first thing you do is you file the will at probate. You have to do this within a certain amount of days of their passing. Once you file the will at probate, you also have to notify all the interested people that there is a will. The interested people are the heirs at law and the people that are listed in the will, the beneficiaries. You send them paperwork, and if they consent to allowance of the will, which means they’re not contesting it, they’re just going to allow it, there is no hearing and the will is just allowed. If there is anybody that contests it, there is a notice of hearing that goes out to everybody and there actually is a hearing to determine if the will is allowed.
Once the will is allowed, the executor or fiduciary goes through the process of gathering assets. As they’re gathering assets, they’re also under a time limit to file an inventory with the court. The inventory lists for the court all the assets that are in the estate that are known of. Over time, they may find more assets, and they just amend the inventory, notify the court of the additional assets. Once they’ve gathered the assets, they’ve drafted the inventory paperwork, they submit that to the court. When they submit that to the court, around that time they’re also notifying creditors. This is called the motion to notify creditors. You can either waive the notice to creditors, or you can provide notice to creditors. If you’re not sure of all the debts the decedent has, or the person that died, if you’re not sure of all those debts, you want to notify creditors. The notification is over a four months period, they have four months to respond, and you have a certain number of times you need to publish it in the local newspaper.
Credit card companies and other creditors, they are actually looking for stuff like this, so they will see it. If there’s a Capital One debt that you don’t know about, Capital One will see this and they will notify the court and the estate that there is a debt out there. Once all the creditors are notified and the four month period is up, what happens if you then gather all the debts and determine all the debts the estate has. Then you take the assets and you determine how much of the assets can pay the debts, if any. At times, creditors will negotiate with estates, because they don’t get all their money all the time. I’ve had several creditors, specifically credit card companies, that have taken 50 cents on the dollar for credit card debt, which is wonderful. It saves the estate money and it has more money to distribute to beneficiaries.
After all the debts are paid, you need to determine the final distributions that will be going out to all the beneficiaries. At this time, you determine all that, then you make a motion for the final distribution, and at the same time you can file a final accounting of the estate. The final accounting of the estate lists all the assets of the estate, all the income that’s come into the estate, and it shows the court exactly where it’s all went. Has it been distributed, has it paid debts? And then at the end of the day, after all the distributions, it should be zero. Although this process doesn’t sound like it’s super long, this is a process that can take anywhere from four to six months, up to years depending on the amount of assets, the complexity of the assets, and just in general sometimes disagreements among the beneficiaries.
If you know anybody that’s wondering about the probate process, share this with them. If you have any questions please reach our and schedule a consultation.
William C. Deveneau is an attorney practicing in Southern Vermont, including Bennington and Manchester, and New York, including Albany, Colonie, Hoosick Falls, and Troy.
What is a Power of Attorney