What’s Involved in the Probate Process?

The “probate process”

The phrase “probate process” usually refers to the legal process of administering the estate (that is, the property) of a deceased person. If a person dies and has a legally valid will, her property will be distributed according to the will and according to Indiana law. If a person dies without a will, her property will be distributed according to a certain formula (created by Indiana law). For example, if the person has a spouse but no living parents or children, the spouse receives 100% of the net estate. If the person has a spouse but no children and a living parent or parents, the spouse receives 75% of the net estate, and the parent or parents receive 25% of the net estate. And so on.

This seems simple enough. Why, then, is the court system involved? And why are attorneys hired to help with the administration? First, the court system is used to verify that a person’s will is actually her will. A legally valid will must, among other things, be signed by the testator (the person making the will) and “witnessed” by at least two other people, who also sign the will. The person named as the Personal Representative—the person who will “carry out” the will—of the will submits the will to the court for verification. Once the court has verified the will, the court issues “Letters Testamentary” to the Personal Representative. This is a legal document that gives the Personal Representative power to do things with the deceased person’s property (for example, distribute the property to heirs under the will).

Making sure that everyone receives her share

Second, the court system is involved to ensure that each party receives what she should according to the will and according to Indiana law. In a world in which wills were not filtered through courts, someone could name you in her will, but you might never receive your share because there is no one to oversee the distribution process. The court system also helps to ensure that creditors of the deceased person are paid appropriately. While you might consider this unfair—why should creditors reduce the amount of money that you get under the will?—it helps to think of creditors as not only big banks and corporations. Perhaps you loan $5,000 to your friend Bill, and Bill promises (in a signed document) to pay back the $5,000 at 5% interest over five years. Bill, tragically, dies after the first year. You call Sue, Bill’s Personal Representative under Bill’s will, and request your money. “Sorry,” says Sue. “Bill’s will left everything to his dog, Rover. There’s nothing left for you.”

Why attorneys?

You wouldn’t think the above situation fair, and rightly so. That’s part of the reason that one of the pieces of the probate process includes notifying the deceased person’s creditors to make sure that everyone gets what is coming to her. Additionally, if creditors didn’t get paid when someone died, someone in her 90s could never get a loan, for why would a creditor take a risk like that? And this notification of creditors helps, finally, to explain what role attorneys play in the probate estate administration process. Making sure that creditors are notified is only one of the many moving pieces of the probate process: all of the heirs must be contacted; all of the deceased person’s property must be located, collected, and maintained; a checking account should be opened in the name of the deceased person’s estate in order to pay for expenses and also to receive cash from liquidated assets, and so on.

Why Mishawaka Law?

That’s where I come in. When you, the Personal Representative under a will, hire me to guide you through the probate process, I’ll help you navigate the legal system and carry out the final wishes of your loved one. Experiencing the death of someone close is difficult enough. Allow me to take away the potential headache that comes with being named as Personal Representative. When you retain me, I’ll make the probate process as seamless as possible.

I look forward to hearing from you!

–Joel Dendiu

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