Most people need time to absorb and work through the loss of a loved one. If you recently lost someone close to you, and that person appointed you to be the Executor of his/her estate, you may find it difficult to juggle your emotional reaction to your loss and the need to focus on the duties of an Executor. The same applies if your loved one died without leaving behind a Last Will and Testament and you volunteer to administer the estate as the Personal Representative (PR). Whether you were appointed or volunteered, the services of an experienced North Dakota estate planning attorney will go a long way toward helping you fulfill your duties and responsibilities. To get you started, however, the estate planning attorneys at German Law Group have compiled some commonly used probate resources for the Bismarck, North Dakota area.
Almost everyone leaves behind an estate when they die. A decedent’s estate consists of everything owned by the decedent, in whole or in part, at the time of death. Ultimately, all those estate assets must be transferred to new owners. Probate is the legal process that oversees the transfer of estate assets as well as ensuring that all debts of the decedent, including tax obligations, are paid before those assets are transferred out of the estate. The individual who oversees the probate of an estate is referred to as the Executor and is appointed by the decedent if a Last Will and Testament was executed prior to death. If the decedent died intestate, or without a Will, any competent adult may volunteer to be the “Personal Representative(PR) and oversee the probate of the estate. For the most part, the duties and responsibilities of an Executor and a PR are the same. For convenience sake, the generic term “Personal Representative (PR)” is frequently used to refer to either an Executor appointed in a Will or a PR who has volunteered for the position. For more general information on the probate process, the American Bar Association has a section entitled “The Probate Process” on its website that you may wish to read. The North Dakota State University has also published an online pamphlet entitled “Wills and Probate” that you may wish to read through for more information.
Resources for the Pro Se Personal Representative
As the PR you will need to get started with the probate process as soon as possible. Typically, probate is initiated in the county wherein the decedent was a legal resident at the time of death. Therefore, if the decedent lived in Bismarck, North Dakota that will likely mean probate will take place in the South Central Judicial District located in Burleigh County, North Dakota. Although you are not legally required to retain an attorney to assist you, the complexity of the probate process coupled with the time and attention you must spend on it causes most PRs do hire an experienced estate planning attorney. If, however, you decide to proceed pro se, or without the assistance of an attorney, you will be expected to understand the applicable laws as well as the court rules and established procedures. The Uniform Probate Code and the North Dakota Local Rules can be found online as can the North Dakota Legal Self-Help Center for those who proceed pro se. For more information on North Dakota’s small estate alternative to formal probate, you may wish to read through the pamphlet published by the North Dakota Courts entitled “Informal Administration of an Estate.”
Finding the Right Attorney
On the other hand, if you do decide to retain the services of an experienced estate planning attorney, you will find that it makes your job much easier and dramatically decreases the likelihood that you will make a costly mistake. When searching for the right attorney, a good place to start is with the American Academy of Estate Planning Attorneys website. The AAEPA is a national organization of attorneys who have chosen to focus their practice on legal issues related to wills, trusts, and estates. Membership in the AAEPA signifies that an attorney has proven experience in the areas of estate planning and/or elder law. The North Dakota State Bar Association’s Lawyer Referral service is another resource that can help you find the right attorney.
Personal Representative Resources
As the PR, your overall function is to make sure that the estate is properly probated. To initiate that process you will need to file the appropriate petition with the South Central District Court. If you are represented by an attorney, your attorney will prepare all the legal documents you need to get started. Along with the Petition to Open Probate, you will also need to submit the original copy of the decedent’s Last Will and Testament along with a certified copy of the death certificate. You may obtain certified death certificates from the North Dakota Division of Vital Records. You will also likely need to conduct a thorough search to make sure you have identified all real property owned by the decedent. One place to check to ensure you have identified all real property is the City of Bismarck’s website where you can conduct an online search. Creditors of the estate must also be officially notified that probate has commenced. Known creditors may be notified individually; however, unknown creditors are notified via publication in a local publication, such as the North Dakota Public Notices.
Paying Federal Gift and Estate Taxes
Because every estate is potentially subject to federal gift and estate taxes, you will need to be familiar with how to calculate the tax and how to prepare the tax return. The Internal Revenue Service (IRS) website offers a general overview of the federal estate tax. They also have a “Frequently Asked Questions about Estate Tax” section that may be helpful. If it turn out that the estate does owe federal gift and estate taxes, any tax obligation due must be paid before any assets are transferred out of the estate.
If you have additional question or concerns regarding the probate of an estate, contact the experienced Bismarck, North Dakota estate planning attorneys at German Law Group by calling 701-738-0060 to schedule an appointment.