The loss of a close friend or family member is typically followed by a period of highly personal emotions. If you recently suffered the loss of someone close to you, and also found out you were named as the Executor of the estate in the decedent’s Last Will and Testament, your personal emotions may need to take second seat while you oversee the probate of the estate. Understandably, this can be difficult, particularly if you have never before served as an Executor. To begin with, you may have a number of questions about the probate process and your role in it. You may be especially worried about whether you will actually need to appear in probate court in your role as the Executor of the estate.
Appointing an Executor
If you have never served as an Executor before, you may know very little about the position. When a Testator creates a Last Will and Testament, a number of decisions must be made. Although most of those decisions relate to the disposition of the Testator’s estate assets, one equally important decision focuses on who will oversee the probate of the estate. That individual is the “Executor” of the estate. In the event someone dies without a valid Will in place, any competent adult can petition to be appointed the Personal Representative of the estate.
The Purpose of Probate
Probate is the name for the legal process required following a death. Probate is intended to serve a number of important functions relating to the decedent’s estate, including:
- Authenticating the decedent’s Last Will and Testament
- Identifying and locating estate assets
- Providing creditors with the opportunity to file claims against the estate
- Ensuring that taxes owed by the estate are paid
- Transferring estate assets to the new owners
Will You Need to Appear in Probate Court?
Probate is a highly individual process, meaning the probate of no two estates will follow the exact same paths. There are, however, some basic steps that occur during the probate of most estates. For example, to initiate the probate process the Executor usually submits the decedent’s original Last Will and Testament to the appropriate probate court along with a petition to open probate and officially appoint the Executor. Whether or not you will need to actually spend time in probate court during your time as the Executor of an estate will depend on several factors, such as:
- The type of probate the estate requires – if the estate qualifies for an alternative to formal probate, for example, there would be no need for anyone to actually appear in probate court.
- Whether there are any creditor disputes – as the Executor, you must notify potential creditors that probate is underway. They then have the opportunity to file a claim against the estate which you must approve or deny. If you deny the claim, the creditor may appeal the issue to the court.
- If someone contests the Will – a Will contest is the most likely reason for an Executor to be required to send any significant time in probate court, particularly if the issue goes to trial. One of the duties of the Executor is to defend the Will submitted to probate. Therefore, if the Will is contested, you must be prepared to defend it at trial.
- If you hire an estate planning attorney – the best way to decrease the likelihood that you will need to appear in probate court is to retain the services of an experienced North Dakota estate planning attorney. If you do hire an attorney, your attorney will take care of most required court appearances for you which is one of the many reasons why most Executors do choose to retain the services of an estate planning attorney.
If you recently found out that you were appointed the Executor of the estate of a recently deceased love one, and you are worried about the need to appear in probate court as part of the role of Executor, contact the experienced North Dakota and Minnesota estate planning attorneys at German Law Group by calling 701-738-0060 to schedule an appointment.