When a loved ones passes away, it is normal to experience a range of emotions. The grieving process may take you from denial to anger to depression – and back again. As you try to handle these heightened, and often conflicting, emotions, the last thing on your mind may be the legal ramifications of your loved one’s death. You may, however, need to think about the legalities involved in your loved one’s death if you were named as the Executor of the estate in the decedent’s Last Will and Testament. As the Executor, your loved one has put you in charge of the administration of his/her estate. If your loved ones died without a Will, you might still find yourself in charge of administering the estate if you volunteer to be the Personal Representative (PR). Either way, retaining the services of an experienced estate planning attorney to assist you throughout the probate of the estate is certainly advisable. To get you started, however, the estate planning attorneys at German Law Group have compiled some commonly used probate resources for the Fargo, North Dakota area.
Probate for the Beginner
When someone dies, that individual leaves behind an estate that consists of all assets owned by the decedent at the time of death. Probate is the legal process by which those assets are ultimately transferred to the intended beneficiaries and/or heirs of the estate. Probate also serves as the legal process wherein creditors of the estate may file claims against the estate and as a way to ensure that any tax obligations owed by the estate are paid. 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 and oversee the probate of the estate. The term Personal Representative (PR) is commonly used to refer to either someone appointed in a Will or who volunteers to administer the estate. 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 a general rule, the probate of an estate occurs in the county wherein the decedent was a resident at the time of death. Therefore, if the decedent lived in Fargo, North Dakota that will likely mean probate will take place in the Cass County District Court. Because probate often involved complex legal issues, most Personal Representatives (PRs) retain the services of an experienced estate planning attorney to assist during the probate process, particularly if the estate does not qualify for a small estate alternative to formal probate. 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 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
If you have never before served as a PR, retaining the services of an experienced estate planning attorney is a wise choice. Not only can an attorney guide you through the process, allowing you to focus on grieving, but having an attorney on your side also dramatically decreases the possibility of making a costly mistake. 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
The overall job of the Personal Representative is to oversee the probate the estate of the decedent. To initiate that process you will need to file the appropriate petition with the Cass County District Court. 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 Cass County Property and Tax website where you can conduct an online search. As the PR you will also be responsible for notifying all creditors of the estate that probate is underway. Known creditors may be notified individually; however, for unknown creditors you must publish a notice in a local newspaper. Navigate to the North Dakota Public Notices website to arrange for publication.
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 North Dakota estate planning attorneys at German Law Group by calling 701-738-0060 to schedule an appointment.