Probate is a Court supervised administrative process transferring legal title of the assets of the decedent to his or her beneficiaries. The probate proceeding is typically initiated with the Circuit Court of the county in which the decedent maintained her or her primary residence.
If an individual died with a Will (also known as dying “testate”), a petition will be filed requesting the court to admit the decedent’s Will to probate for administration. A personal representative is appointed by the court to conduct the administration of the decedent’s estate. The decedent nominates who he or she prefers to serve as personal representative in his or her Will.
It is important to note that a decedent’s Will is not effective until the Will is admitted to probate by the court. Additionally, the nominated personal representative under the Will has no proof of authority to act on behalf of the estate until the Will has been admitted and the personal representative is appointed.
An individual who dies without a Will (also referred to as dying “intestate”) the decedent’s assets are distributed in accordance with the State’s laws of intestacy. State law will also establish the order of priority of who may serve as personal representative.
The personal representative is responsible for administering the decedent’s estate in accordance with state laws and rules. A personal representative is a fiduciary position owing duties to estate beneficiaries, creditors and other interested parties to the administration.
There are three (3) main types of administration: Formal Administration; Summary Administration; and Disposition of Personal Property without Administration.
Formal administration is typically required for estates where a decedent died within the proceeding two years, having asset valued more than $75,000.00 (not including certain exemptions), there are potential creditor issues or certain property of the decedent is being sold. Formal administration requires the assistance of an attorney and the appointment of a personal representative.
Summary administration is a typically available for decedents who have been deceased more than two years or with assets valued less than $75,000.00 (value does not include certain exempt property). Summary administration requires the assistance of an attorney.
Disposition of personal property without distribution is available for estates that have very little assets. An attorney is not required to assist with this type of administration.
Probate avoidance is an estate planning option, and sometimes the driving force behind the establishment or update to an existing estate plan. However, these types of plans avoid probate court, they will not avoid administration.