So, you’ve been named executor of your loved one’s will, and you’ve no idea what that job involves. In fact, you’re not even sure what probate means. You will probably want to consult with an attorney. But before you do, take a look at this overview of the procedures involved in settling an estate as well as the glossary of legal terms you may encounter during the process.
Probate is the legal process that resolves the terms of a will, and it varies from state to state. But one thing is certain… probate is a process… and oftentimes a lengthy one. “According to the American Bar Association, the probate process, on average, is completed in six to nine months after a probate case is opened with the court. This can vary depending on the court and may take years if there are disputes over legality of the will or distribution of assets.” In Delaware, an Estate must be kept open a minimum of eight months from the date of death, and is commonly open for a full year.
That said, this guide boils it down to the basics:
· The court appoints an administrator of the estate. If the deceased had a will, they likely chose the administrator of their estate, referred to as the executor or executrix. If there was no will, or a will with no listed executor/trix, the court appoints a personal representative.
· The court decides if the will is valid. Each state has different requirements for signatures, witnesses and notaries that help define whether a will is valid. It is important to know the law of the state where the will was executed.
· The executor identifies and lists estate assets.
· The executor arranges property appraisals.
· The executor pays debts and taxes with assets from the estate.
· The executor distributes assets according to the will’s terms (or state law if there’s no will).
So, what does all the legal jargon surrounding probate really mean?
Here, some legal terms commonly seen in a will or throughout the process of settling an estate:
Probate: The legal process through which a court reviews, validates and carries out the terms of a will.
Beneficiary: Someone who inherits property or assets through a will.
Bequest: A request in a will to leave property to an individual.
Heir: Someone who inherits property by statute.
Inheritance Tax: A tax on inherited assets, based on the relationship between the deceased and the beneficiary / heir. Delaware does not currently have an inheritance tax.
Intestate: Someone who dies and has no will.
Executor or Executrix: The person designated in a will or by the court who is responsible for settling the estate and distributing assets to heirs.
Custodian: A person who oversees assets left to a minor until the minor is old enough to manage the assets herself.
Guardian: A person legally responsible for minor children whose parents have died.
Residuary Estate: Any asset to in a will that’s not specifically named.
Living or Revocable Trust: A legal document /entity. A person’s assets can be placed into a trust for their benefit until their death, at which time the trust is transferred to named beneficiaries. The person who sets up a revocable trust can alter or cancel the trust at any time.
Irrevocable Trust: A trust that cannot be changed once established.
Grantor or Settlor: A person establishing a living or revocable trust.
Trustee: A person who controls a trust and manages its assets.
Estate Tax: The tax on the assets passed on to heirs following a person’s death.
Real Property: Real estate, including land, houses, office buildings, etc.
As you may see, settling an estate takes time and effort. But, with the right attorney, you can make the task as seamless as possible. Oh, and I happen to know a probate expert…