Understanding Probate & Items Needed
The very thought of Probate can be overwhelming to most people. At Snodgrass Funeral Home we want to provide you with as much information as possible to assist you in the Probate process. We will be happy to answer any questions you may have regarding this process. Although a probate attorney is not required for the probate process in the settlement of most Estates, there are times in which a probate attorney is needed and/or required. In the event a probate attorney is needed, it is always wise to comparatively shop for an attorney that you can afford, trust, and feel comfortable with.
What is Probate?
Probate is a legal process by which the Estate of the deceased is transferred or distributed to the beneficiaries, heirs and/or creditors. Probate may take as little as 6 months to a year or more depending on the Estate. Whether a Will is left or not by the decedent, the Estate must go through Probate. There are times that Probate may not be a necessary action. This would have to be determined by the local Fiduciary Supervisor’s Office in the county of which the deceased resided and/or owned property. Generally speaking, the steps in a “normal uncontested probate” are as follows:
- Death of the decedent
- The will is delivered to the executor or Court Clerk
- A petition is filed for the Probate of Will or Letters of Administration
- A hearing is held on the petition
- Letters of Administration are issued by the Court
- Notice to creditors is given
- Inventory and appraisement of the estate is made by an independent probate appraiser
- File Federal Estate Tax Return. Return states “No Tax Due” or specifies an amount due
- Final decree of distribution
- Discharge of personal representative
When There is a Will
When a Will is left and a personal representative is named by the deceased the Probate Court will appoint this person named to serve as the Fiduciary over the Estate. The personal representative is called the Executor or Executrix. The Executor is responsible to see that the terms and wishes of the deceased are carried out to the final settlement of the Estate. The term “Testate” refers to a person who died with a Will.
If the Will states that the Executor may serve “without bond” and the Will is accepted by the Probate Court as a legal document then the Executor will not need a Bondsman. However if the Will does not list the Executor to serve “without bond” the Probate Court may require a Bondsman to be present. A Bondsman is the person or company which will provide surety in the form or Real Estate, Cash or other valid Asset to the Probate Court. Depending on the value of the Estate, a Corporate Bondsman may be necessary.
When There is Not a Will
If a Will is not left by the deceased, the Probate Court will appoint an Administrator/Administratrix to oversee the Estate. Usually this person is the closest relative of the deceased or may be the person the majority of the heirs requested. The heirs have 30 days to make their request known to the Probate Court of the designated Administrator. On the 31st date after death, anyone can ask to become the Administrator or the Estate without the majority of the heirs acknowledgement. The Administrator serves in the same capacity as the Executor in the Probate process. In the absence of a Will, a Bondsman will be required. Depending on the value of the Estate, a Corporate Bondsman may be necessary. The term “Intestate” refers to a person who died and did not leave a Will.
For access to the Kanawha Country Probate Forms, please click the button below.
Items Need for Probate
Don’t forget to have your loved one’s Social Security number handy to begin the Probate process.
The death certificate of the decedent is an important item to obtain for Probate.
Prepare a list of all Assets in the Decedent’s Name including joint accounts and ownership. Assets may include but are not limited too: bank accounts, insurance policies, investment accounts, retirement accounts, stocks, bonds, real estate, automobiles, recreational vehicles, personal items, cash, etc….
You will need to take with you one form of Photo ID such as a valid Drivers License, Passport or other State or Federal Issued Photo ID.
The list should include all beneficiaries (may include churches, charities, trustees of trusts, etc.) and heirs at law (spouse, children, children of any deceased children, if no spouse or children, list Mother, Father, Brothers, Sisters, Nieces or Nephews).
You will need to have copies of any Deeds and Tax Tickets for any and all Real Estate and Mineral Rights owned by the decedent at the date of death. If you are using an Attorney this is not necessary.
If there is no surviving spouse or no beneficiary listed, you will need the consent from the majority of the heirs to be appointed over the Estate of the deceased. This consent must be NOTARIZED and accepted by the Office of the Fiduciary within the first 30 days after death of the decedent. After 30 days ANYONE may be appointed over the Estate WITHOUT consent.
Fiduciary and Recording Fees will apply. They may range from $75.00 – $300.00 and must be paid in cash or check. The amount will be determined by the Deputy at the time you are appointed.
You may elect to obtain a Probate Attorney to assist you in the Probation process. It is not required that you hire an attorney to go through Probate. This is merely and option for you, however if the decedents Estate is in excess of 1 million dollars, it is required that you have a Probate Attorney.
When you begin the Probate process, you may find that you will need a bondsman to provide a surety on your behalf. Click here for a list of bondsmen in the local area that may be able to assist you in this matter.