At the time of death, a decedent leaves behind an estate that is made up of all assets owned by the person at the time of death. This includes both real and personal property as well as tangible and intangible assets. Ownership of those assets must eventually be transferred to the beneficiaries and/or heirs of the estate. To ensure that happens in accordance with the law, most estates are required to go through the legal process known as probate. Probate also serves to:
- Identify, locate, and value all estate assets
- Notify creditors and allow them the opportunity to file claims
- Make sure all taxes are paid
- Authenticate the decedent’s Will and litigate any challenges to that Will
Formal probate is not always necessary; however, some form of probate is almost always required. Like most states, the State of North Dakota does offer an alternative to formal probate for small estates that qualify. For an estate to use the small estate alternative the estate cannot include real property AND the value of the estate, less liens and encumbrances, cannot exceed $50,000. If the estate meets those two criteria, you can use an Affidavit for Collection of Personal Property to distribute estate assets.
If the decedent died without leaving behind a Will, the estate is an “intestate” estate. Fundamentally, probating a testate estate is the same as probating an intestate estate in that the basic goals of the probate process remain the same. The primary difference is that instead of using the terms of a Will created by the decedent to distribute assets, the North Dakota intestate succession laws will determine how the estate assets are to be distributed.
Assets are divided into probate and non-probate assets for the purpose of administering an estate. One of the first things that must be done following the death of an individual is to determine which property is probate property and which property is non-probate property. Non-probate property bypasses the probate process and may be distributed right away. Common examples of non-probate property include:
- Assets held in a trust
- Proceeds of a life insurance policy
- Funds held in accounts designated as “payable on death (POD)” or “transfer on death(TOD)”
- Certain jointly held property
- Funds held in certain retirement type accounts
If the decedent left behind a Will, the individual appointed as the Executor in that Will is who will oversee the administration of the estate during the probate process. If the decedent died intestate, any competent adult may volunteer to be the Personal Representative of the estate. If no one volunteers, the court must appoint someone. For the most part, the duties and responsibilities of an Executor and Personal Representative are the same.
Every estate is unique, making the probate process unique for every estate as well. Nevertheless, there are some fairly common steps in the probate process, such as:
- Identifying, securing, and valuing estate assets
- Opening probate by submitting the original Last Will and Testament (if applicable) and a petition to open probate in the county where the decedent was a resident at the time of death.
- Identifying and locating heirs if the decedent died intestate.
- Notifying creditors that probate is underway.
- Reviewing creditor claims and approving or denying each claim.
- Litigating any claims
- Calculating and paying any state and/or federal tax due.
- Transferring the remaining assets to the intended beneficiaries/heirs of the estate.
The amount of time it takes an estate to get through the probate process depends on several factors, including the type of probate required, the size, value and complexity of the estate, and the skill and efficiency of the Executor/Personal Representative. In the State of North Dakota, it will take a minimum of about four to five months to probate an estate because creditors have at least three months to file claims against the estate. As a general rule, the larger and more valuable the estate, the longer it takes to probate. In addition, if someone challenges the validity of the decedent’s Last Will and Testament, the ensuing Will contest will prolong the probate process as well.
Formal probate can be costly, both in terms of time and money. Moreover, assets may not be released to beneficiaries until the probate process has reached a conclusion. In addition, everyone involved in the probate of an estate is entitled to a fee for their services, including the Executor, attorney, accountants, and appraisers. As a general rule, the longer it takes to probate the estate, the more it costs to do so. The more it costs to probate the estate, the less assets that are left to pass down to loved ones, ultimately making probate avoidance an attractive goal.
If you have additional question or concerns regarding the probate process, contact the experienced North Dakota probate attorneys at German Law Group by calling 701-738-0060 to schedule an appointment.