Probate is a process started when a person dies to determine the validity of a deceased person's will and accept a death certificate. The probate process is a court-supervised administration that takes a minimum of four months in most situations but can take much longer. If a court-appointed personal representative requests a bond from the probate court for their fiduciary appointment, there are specific requirements that must be met prior to approval, which include an inquiry into credit history, employment status, and criminal history. In some cases, a personal representative may not be necessary if no disputes exist with heirs or creditors. If someone contests the validity of a will during probate proceedings, usually results in postponement until all information is confirmed.
If a person dies without a will, the probate attorney may petition the circuit court of the county where he or she resided at the time of death to open a probate case on behalf of eligible heirs. The complaint should include information about all property that was owned by the decedent, including any titles, deeds, and mortgages. If there are no eligible heirs, this same process is required if someone has died leaving behind minor children, parents, or other dependents who did not leave them enough money to provide for themselves post-death.
The probate court appoints a personal representative to a decedent's probate estate, or a court-appointed probate attorney may be appointed to administer the probate case if there are no eligible heirs. In some cases, a person may file a petition for an appointment as a personal representative in probate court. These petitions must contain a sworn statement that includes details about all personal property, property owned jointly with others, and any other property which could not be included on the death certificate form because of its worth.
A tax return is not required for a decedent whose date of death was January 1st unless he or she owned a business that conducted a profit or loss operation or a non-profit organization. If a tax return is due under this provision, the personal representative must prepare and file a final income tax return with applicable federal government offices within nine months of death. If there are no assets available to pay creditors, a personal representative cannot be held liable for unpaid taxes if they filed all required forms before the due date.
If debts were owed by the decedent, a personal representative has 120 days after initial appointment in most cases to provide notice to creditors about information pertaining to a probate case. The notice should include items such as the name of the deceased person, the time period his or her probate estate will be open for a claim of liability, a summary of a decedent's last known income, and a list of the personal representative's contact information.
After a creditor receives notice, he or she has four months to file a written claim against a probate estate. If these deadlines are not met or if a claim is made by someone who was unaware of probate proceedings, it may be invalid and must be refiled during the next scheduled period before it can be considered by a judge.
When distributing property and cash from a probate case where there are no eligible creditors, those debts which a personal probate representative has the power to pay on a decedent's behalf are paid first.
The types of debts that qualify for this treatment include reimbursement of funeral expenses, payment of outstanding medical bills or costs associated with final illness, decedent's final income tax return, and wages required by state law to be taken out from a probate case.
Any remaining borrowed funds must be used to reimburse all creditors who have filed a claim against a probate estate within six months after the initial appointment. If there is any amount left over after these payments, the court may make distributions in accordance with a decedent's will or probate court's instructions.
