Not everyone needs to have their estate probated, this depends on what assets someone has when they pass. Therefore, there can be no set plan for everyone's probate. Each person's probate and how to settle the Estate is unique to the person. The Probate services we provide include, but are not limited to the following:
When someone passes away with a will the will must be probated to effectuate the distribution of the assets of the probate estate. There are two main types of probate that can be done when someone passes with a valid will. The first is to get what are called Letters Testamentary, this means that the executor named in the will, will be approved by the Court and given what are called Letters Testamentary. These letters allow the executor to act as the personal representative of the probate estate and to distribute assets and pay any outstanding debts that the estate might owe. The second type, called a Muniment of Title, for this type of probate to occur someone must have a valid will when they pass, and for there to be no debts owed by the estate. If the Court approves a Muniment of Title, instead of being issued Letters Testamentary, the Court signs an order which can then be filed with the County Deed Records that transfers the title of the assets to the named beneficiary(s) of the will.
If someone passes without a will, then another type of probate must be done. Much like with a probate where someone gets Letters Testamentary, when there is no will an Heirship proceeding is the appropriate type of probate. An heirship proceeding, if approved by the Court grants the personal representative of the estate what are called Letters of Administration. These letters allow for the same powers as Letters Testamentary. However, as opposed to when there is a will, the estate passes through a Statute. This Statue is called the intestacy statue.
There is another lesser used type of probate, when someone passes without a will. There are additional criteria that must be met for this type of probate to apply. It is called the Small Estate Affidavit. These criteria are as follows: (1) there is no will; (2) the total value of the estate is less than $75,000; (3) there must be more assets than debts in the Estate; (4) the only real property in the Estate is a homestead; (5) all heirs under the intestacy statute are able to found and agree to sign off on it; (5) there is no pending application for another type of probate on the estate; (6) more than thirty days have passed since the death of the decedent; and, (7) there is no need for administration (i.e. as with the muniment of title, there are no debts that need to be dealt with by having a personal representative of the estate appointed.)
When it comes to the types of probate where a personal representative is appointed, for Letters Testamentary or Administration, there are also two levels of Court involvement that can happen. If the Court appoints the personal representative and then allows them to act freely then it is called an independent administration. Meaning that other than filing an inventory or if a creditor sues, there is usually not a need to go back to Court. If there is a will and someone is named an independent executor, then this is usually the case. If there is no will then all the heir have to agree to allow it to be independent. Alternatively, if the will names a dependent executor or all the heirs cannot agree, then it becomes a dependent administration. In a dependent administration every action of the personal representative of the estate must be approved by the Court, before it can happen. Needless to say a dependent administration is more time consuming and costly than an independent administration.
If you are needed to probate the estate of someone who has recently passed, please feel free to get in touch with our office at (972) 330-2171 for a free consultation.