Usually when someone asks “What is probate?” the response is something like “it is the court-mandated and controlled process to distribute a person's assets upon their death.” But what the heck does that actually mean? What follows is a broad outline of the major steps involved in probate here in Montgomery County, Maryland. But the process is generally the same in other jurisdictions.
File a Petition to Open an Estate
Depending on the overall size of the estate, a family member or other interested person must file a petition to open the estate in the county in which the deceased reside at the time of their death. The forms to do so are available from the Register of Wills and are fairly straightforward to complete. But as with all things involving an estate, it pays to have an experienced probate attorney assisting in this effort as there are some nuances and it can save time and aggravation. One would file a petition for a small estate if the total value of the estate is $50K or less ($100K or less if the spouse is the sole beneficiary). Above that would be a petition for a regular estate and the rest of this discussion will assume that is what is being filed.
The petition requires some basic information about the deceased as well as the individual submitting the petition. At this point one fo two scenarios apply; the deceased either had a Will or did not. In either case, the petition is required and the petitioner states why they should be appointed as the executor or personal representative as it is called in Maryland. Typically it would be beaus they were named to the role in the Will or they had a relationship with the deceased to warrant their appointment (i.e. they were the spouse, or oldest child, or sibling, etc.)
In addition, the original Will and an original death certificate must accompany the petition. Both will be returned but it must be the originals that are submitted. If one can not find the original but has a copy of the Will, then an extra set of steps must occur to get the copy approved for submission.
Lastly, several other forms that will be sent out by the court as part of the publication of the Will must accompany the submission. These basically are templates with some information included that provide or announce the Notice of Appointment, Notice to Creditors, and Notice to Unknown Heirs. There is no fee required to petition to open an estate.
File a List of Interested Persons
Ideally, this should be filed along with the petition. The estate will not be opened (in other words the process won't be started) until the list of interested persons is filed. This list includes the names and addresses of those named in the Will, if any, and those who would inherit if there were no Will under the laws of intestacy. These individuals will be notified that the petition has been filed and will receive copies of the notices listed above and have a right to object to the proposed appointment if they see fit.
A question we often get is “if the Will excludes someone from inheriting and they are therefore disinherited, do they have to be listed as an interested person?” The answer is yes. And at that point, they would have the option to challenge the Will if there were a reason. Simply being disinherited is not sufficient reason alone for such a challenge.
File an Inventory of Assets
Within three months after the date of appointment of the personal representative, an inventory of property owned solely by the decedent and the decedent's interest in the property held as a tenant in common must be filed. Each item must be listed in reasonably descriptive detail, indicating its fair market value as of the decedent's date of death. The petitioner has to provide the basis for the estimate (Kelly Blue Book listing, bank statement, etc.) or in some cases an actual appraisal by a disinterested third party (such as for jewelry or valuable collections). This inventory can be amended as need if new information comes to light.
File the First Accounting
Finally, at least hopefully, within nine months after the date of appointment, the First Accounting must be filed. The Account includes the inventoried assets and all financial activity of the administration. Basically, one has to list all of the assets of the estate, their value, any transactions that occurred regarding them, any change in value, and any distribution made to the heirs. All receipts, including income, sales and redemptions, disbursements, distributions, and a list of assets remaining in the hands of the personal representative must be reported. If real property is sold, a copy of the closing disclosure statement is required. If everything is complete and in order, the court will issue a final order allowing for the completion of the distribution of assets in accordance with the Will and this accounting. If everything is not settled, then the petitioner must file subsequent accounting as required by the court until the matter is final and the estate closed.
Should You Hire a Professional
Most people have the capability and general knowledge to act on their own behalf in filing to probate an estate. But it is aggravating at times and can be confusing. Hiring a professional estate administration attorney to assist with the process can go a long way to reducing the time, effort, and money spent to probate an estate. Some people simply like to have an attorney “hold their hand” through the process for peace of mind in knowing that the estate is handled properly. And the steps outlined above are the major ones. There are others that come up depending on the nature and circumstances of the estate that can't be addressed here but that might make hiring an attorney to assist you even more practical.
Should you decide that you need assistance in this difficult time, please feel free to reach out to us at The Tyra Law Firm, LLC. We can take a lot off your shoulders and help you get this done as easily and simply as possible.