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Defining the Probate Process

Defining the Probate Process

Defining the Probate Process

When someone close to you passes, the aftermath can be complicated. Whether you are designated as the personal representative of an estate or simply stand to inherit property, you may have to go through probate. “Probate” itself is a term that many people are unfamiliar with, and the process is surrounded by other complex words and legal concepts.

Understanding these terms and concepts can help you get through the probate process.

What Is Probate?

According to the University of Wyoming:

Probate generally refers to the court-supervised process of legally transferring property from a dead person to a living person.”

This process usually involves choosing someone to sort out the deceased’s affairs, identifying and inventorying property, paying outstanding debts and taxes, and getting the deceased’s property to the correct people. In some cases, probate may also involve a will that will direct and provide instruction to the deceased’s personal representative regarding distribution of the property.

Key Terms and Processes

Let’s start at the beginning. When someone dies, they become the decedent in the probate process. “Decedent” simply means a person who has died. Sometimes, the decedent leaves behind a will, or a legal document that indicates how their estate should be divided. The term “estate” refers to all real and personal property owned by the decedent at the time of their death. “Real property” indicates land or real estate the decedent may have owned, and “personal property” refers to money or items the person owned. The term “tangible personal property” is used when the property has a physical form and can be measured, felt, seen, or touched (i.e. furniture, silverware, and books).

Whether or not the decedent has a will, if the value of assets subject to probate exceeds $200,000, a personal representative will need to be appointed by the court to undertake the probate process. This person is tasked with administering a decedent’s estate. Sometimes, personal representatives are named in the will and called “executors,” and other times, they are appointed by the court and called “administrators.” When the personal representative goes to court, they receive letters testamentary or letters of administration, which give them the authority to act on behalf of a decedent’s estate.

If the decedent left behind a will, the process will be testate probate, but if they died without a will, the process will be intestate probate.

When someone dies, the individual or attorney who has custody of their will must deliver the will to the clerk of the district court or the named personal representative within 10 days. If there is no will, the court will have to divide the decedent’s property via the intestate laws.

Generally, in Wyoming, wills must go through probate when the decedent owns assets that are:

  • Located in Wyoming
  • Worth more than $200,000
  • Held in the decedent’s sole name
  • Not transferred to a designated beneficiary such as with a 401(k) plan, IRA, life insurance, etc.

The first step in the administration process is to identify the assets owned by the Decedent and determine an approximate value of those assets. If the value of assets subject to probate exceeds $200,000, a petition should be filed with the District Court requesting a personal representative be appointed. After the personal representative has been appointed, the personal representative will be responsible for identifying, gathering, valuing and then, after administration is completed, distributing the assets. A notice of probate will need to be published in the local newspaper once a week for three consecutive weeks giving creditors an opportunity to file claims against the estate. An inventory and report of appraisal will also be prepared and filed by the personal representative. Final tax returns will need to be prepared and filed on behalf of the decedent. Assets may be sold, but generally any sale must be pre-approved by the court. Once final debts, expenses, cost of administration, etc. have been made and the time period for creditors to file their claims against the estate has expired, the personal representative can petition the court for authorization to distribute the assets to those beneficiaries named in the Will, or if the decedent passed without having a Will, to the heirs of the decedent as identified by Wyoming law. A copy of the final report, accounting and petition for distribution will be provided to each of the beneficiaries/heirs, and they will be given an opportunity to address any questions or objections to the actions of the personal representative. Once the court approves the final report, accounting and petition for distribution, the personal representative will distribute the assets and then petition the court for closing of the estate. Generally the probate process takes between six and nine months to complete, subject, of course, to the complexity of the estate.

What About the Specifics?

Each case of probate is different, and the process will depend on what kinds of documents and systems the decedent left behind. If you need help going through probate, deciding whether or not to put a will through probate, or even choosing a personal representative, Bailey | Stock | Harmon | Cottam | Lopez LLP can help. Our attorneys have over 100 years of combined experience in estate planning and probate.

When the unexpected happens, we are here for you. We can also help you plan for the unexpected before it occurs.

If you need help with any kind of estate planning, please call us at (307) 222-4932 or contact us online today.

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