Demystifying The Probate Process

Today I’m pleased to have Sharon Vornholt join us to do a guest post. 

Sharon Vornholt is Founder & CEO of Innovative Property Solutions and has been investing in real estate since 1998 and has been involved with the industry quite awhile before that.  Sharon has extensive experience working with people dealing with probate and will demystify the process in today’s article.

(Please note that every state will be a little different.  While Sharon gives a great overview of the process she does not work in Massachusetts or New Hampshire so please talk to a good attorney in your area to get all the details for your particular situation)

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Wills and Probate - MA and NH Real Estate

The Probate Process

Settling an estate can be very confusing especially if you have never been involved with the probate process before.  The terminology is confusing, the timelines are unclear, and most of the time folks just don’t know where to start.   All of this comes at a time when emotions are raw and the family is overwhelmed.  Having property to sell that is part of the estate is just one more thing on your plate during what is already a difficult time.

Local real estate investors provide a valuable service for people in this situation.  We can make the process of selling the property in the estate a hassle free experience so you can move on with your life.

Today I would like to try to simplify the probate process and explain some of the terminology that is commonly used during this time.

Breaking it All Down

When you break down this process in its simplest form it’s not really that difficult to understand.

There are 5 main steps:

  • When someone passes away there is a petition for probate
  • An executor is named in the will or the court appoints an administrator
  • The assets are sold to pay any creditors
  • The heirs get what is left after the assets are sold and the creditors are paid
  • The estate is closed

That’s it in a nutshell, but today I would like to expand on this a little bit more.

The Petition for Probate

Probate is not only the process by which the will is executed, but it is also the process by which the will is validated.  The Petition for Probate is a document that is filed with the court generally along with the will so that the wishes of the deceased can be carried out in accordance with the instructions in the will.  In most states an individual can get this form from the probate court however there will be many documents to be filed with the court during the probate process so a probate attorney will most likely be needed.

What is the Difference in the Executor and the Administrator?

These terms tend to cause a lot of confusion.  When someone passes away and a petition for probate is filed, what happens next will depend on whether or not there is a will.

Testate describes the situation where there is a will and the deceased has named someone in the will to act in all matters concerning the estate. This person is called the executorof this estate.

Intestate describes the situation where there is no will.  If there is no will, then the court will appoint someone to administer the estate and this person is called the administrator. This person is often a family member.

The duties and responsibilities of the executor and the administrator are the same.   The only difference in these two titles is that when there is a will the deceased has personally chosen the person(s) that will make all of the decisions regarding the estate.  In the absence of a will the court choses someone to handle these duties. I might mention that this person is also sometimes referred to the PR or Personal Representative in both cases.

Selling the Assets

In order for any creditors to be paid and the heirs to receive their inheritance, the assets in the estate must be sold.  This includes any real property as well as things like jewelry, personal possessions as well as stocks and bonds.

Laws vary from state to state but in general the house can be sold once the probate process has begun.   You do not have to wait until the process is finished. In fact it can’t be completed until the creditors have been paid. Once this is done, the heirs inherit anything that remains and the estate can be closed.

Finding a Good Probate Attorney

In some cases, the executor and family members may be able to take care of many of the things required to settle an estate.  However it has been my experience that you will need a good probate attorney for some if not all of the things that need to be done depending on the complexity of the estate.  An attorney will save you a great deal of time, and they can advise you on the legal aspects of the process along the way. Probate attorneys generally charge a percentage of the estate for their services.

Once everything is completed, the estate will be closed. Tax forms will need to be filed so this is another reason you might need the guidance of a probate attorney.

With just a little bit of knowledge, you can move forward with this process and hopefully remove some of the stress at the same time.  

 

You can learn more about Sharon and read more by her on her Blog: louisvillegalsrealestateblog      

 

Do you need to sell your Massachusetts or New Hampshire house fast?  If you would like to sell your home fast and hassle free schedule a consultation with us today.

 

 

(Image credit: Wills and Probate, via the Williamsons Solicitors Website)      

 

Comments

  1. Nice article. This is an area of the law few people have any experience. And, a target of opportunity for investors.

    • Hi Rick,

      Thanks for reading and commenting.

      I think you are spot on that it is an area few people understand or have experience with so there are lots of opportunities for people that take the time to learn the process and can help guide people through it.

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