Nearly everyone has some type of estate when he dies, even if that estate is small. But whether or not your parent's estate is large, you must follow your state's legal requirements when distributing that estate. This may involve creating a probate case for your parent, but you may also have other options depending on your state's laws and the type and value of your parent's assets.
Probate is the process in which your parent's financial affairs are settled and his assets distributed. During the probate process, the court appoints a representative to manage the estate until it can be distributed to your parent's heirs or beneficiaries. If your parent left a will, the court determines its validity and hears any challenges to it. Also during probate, the representative of the estate must provide notice to your parent's creditors that the probate estate has been opened, and he must pay your parent's debts out of the assets he left behind. At the end of the probate process, the representative can distribute any remaining assets to your parent's heirs or beneficiaries.
Picking a Probate Process
Though the steps of probate are generally the same, state laws determine the exact procedures you must follow in each probate case. Before you open a probate estate for your parent, you must choose what type of probate case to open. For many estates, the probate process can be supervised, sometimes called formal probate, or unsupervised, sometimes called independent administration or informal probate.
Generally, formal probate is more expensive and can take more time because the court closely monitors the actions of the estate's representative. For example, the representative may have to get the court's permission to sell your parent's real estate. By contrast, informal probate generally requires little supervision, although the estate's representative must file some paperwork with the court.
Initial Steps of Probate
Once you have determined what type of probate process is appropriate for your situation, you can file a probate petition to begin your deceased parent's probate case. Generally, anyone with a financial interest in the outcome of the probate case can file the initial paperwork. If your parent left a will, you must file it with your probate petition; petitions must be filed in the probate court where your parent lived. The court can appoint you as the representative for the estate and generally will require you to compile an inventory of your parent's assets.
Alternatives to Probate
Depending on the assets in your parent's estate, you may be able to settle it without starting a probate case. Assets like life insurance generally pass directly to beneficiaries without having to go through probate. State laws may also provide a way to settle certain estates without going to court. For example, Texas allows real estate to pass to a deceased's heirs through an affidavit of heirship, which is a sworn statement that meets specific legal guidelines, as long as the deceased died without a will and left only real estate.
Read More: Probate Account vs. Probate Inventory
Heather Frances has been writing professionally since 2005. Her work has been published in law reviews, local newspapers and online. Frances holds a Bachelor of Arts in social studies education from the University of Wyoming and a Juris Doctor from Baylor University Law School.