Probate is the legal process that involves the distribution of a person’s assets (“estate”) after death. How such assets are to be disbursed will vary, particularly if the deceased leaves behind a Last Will and Testament dictating which individuals are to receive what assets or possessions.
However, in general terms, through the probate process, a deceased individual’s estate and assets will be distributed in most cases to heirs and creditors.
The probate process in the United States will vary from state to state and jurisdiction to jurisdiction, so it is often strongly recommended that an attorney or lawyer that is experienced in the probate process be hired to help through the involved legal procedures. For example, in Michigan we have formal and informal procedures, and various small estate procedures that will be different depending on the amount and kind of assets left behind by the deceased.
The probate process will prove to have various steps and procedures, each involving different amounts of involvement of the probate court in the county where the deceased resided at the time of his or her death. The determination of whether or not the deceased left a valid will behind is crucial.
A Last Will and Testament will be the legal document which will dictate how the deceased assets and estate are to be distributed among family members and loved ones. In the will, a personal representative (formerly called an executor) will be assigned, who is the individual nominated by the testator, or deceased person, to carry out the terms of the will.
The Personal Representative will usually be a surviving spouse or child of the deceased, though any other family member or individual can be designated to such role. Often times, wills are drafted with the help of attorneys, which can prove to be a valuable source in assisting the personal representative through the probate process. The fees for the attorney’s services are usually provided within the will to be paid by the remaining estate.
The personal representative of the will must take into account all of the property, possessions, and assets of the deceased, helping establish a monetary value to the estate.
Any creditors involved will be notified of the individual’s death, and will have a certain time frame in which to present any debt incurred by the testator that is to be paid after death. The debts will usually be settled through the estate and assets, and the remainder of the estate is then to be distributed in accordance with the will.
If there is no Last Will and Testament, the State will be responsible for determining how the assets are to be distributed, using the relationship of people to the deceased as a priority.
An issue that is often times of concern arises when the testator or deceased did not leave sufficient assets to completely pay an incurred or present debt. It should be noted that all creditors are to collect debts directly from the estate or assets of the deceased, not the heirs. Even in the case that the assets do not hold enough value to settle existing debts, heirs are not held responsible to provide the debts of the deceased.
Creditors will often times seek to collect debts from the heirs, though such practice is considered to be illegal and be reported appropriately. The only time creditors may be founded in their collection of debts from heirs is in the case that an heir co-signed for a loan, where he/she will be considered responsible and accountable to cover the remainder of a loan or debt