Both the probate and administrative proceedings are key components of any estate after the death of the owner. If the deceased person passes away with a Will, then the probate proceedings will be followed. If the deceased has died without any will or trust then the administrative proceeding will be followed. Both the proceedings have different procedures and take up a different amount of time to settle.
This article will give you a clear idea of what
these two terms signify and what are the scenarios for these two proceedings.
What Do You Mean by Probate?
In case the deceased has left a will then probate proceedings will be taken up. The court will legally settle the estate and the distribution of the assets according to the will of the deceased. Also, the executor (as mentioned in the will) will get to control all the accounts and the belonging of the deceased. It will be his or her duty to pay any remaining debt in the name of the deceased and to distribute the assets among the beneficiaries.
What Do You Mean by The Administrative
Proceedings?
When the deceased dies without leaving any
will, the court actually has to take up the decision of division of the assets
and passing of the inheritance. Each state is different as each state has
different intestacy laws that they follow. For example in New York if the owner
dies without an will or trust and is survived by a spouse and two children then
the surviving spouse will inherit fifty percent of the estate and the remaining
fifty percent will be divided equally among the children.
Now let us discuss these two proceedings in
further detail.
The Grant of Probate
Well, if the deceased mentions the name of the
executor clearly in the will the executor takes control of overseeing the
Probate proceeding and settling all debts and paying out all distributions.
Thus, you need to choose very carefully who you wish to be your executor for your
estate. The executor must be a responsible and a trustworthy person. It is
always better to have a very close person to do the job.
But obviously, before the transfer of any funds
or belonging, the permission of the court is highly essential. One needs to
take permission from the court regarding the grant of the probate. Only after the submission of the correct and proper
documents and the original will, the court allows and gives full rights to the executor.
The financial institutions also need to be informed of the legal authorization
of the executor. Only after the legal permission of the court, the executor can
start distributing the assets according to the will of the deceased. He or she
will also have to take care of any debt remaining in the name of the deceased
as mentioned before.
The Administrative Proceeding
In case the deceased has not left any will,
then the court has to legally appoint an administrator to take care of all the
assets and the properties of the deceased. This cannot be done by the court
directly. One has to apply for the grant of the administrator. This can be done
by anyone who was close to the deceased. But it is not as simple as it sounds.
Normally there is a dispute among family members as to who is the right person
to take up this responsibility. This makes the estate settlement very time
consuming and messy as well. Only after the court has given the permission to
the administrator, the assets can be distributed among the family members.
Conclusion!
Probate and administrative proceedings are
very different from one another. The key factors to remember are if a person
passes with a will then it must be probated if a person passes without at will
then the estate is subject to an administrative proceeding. Now this is not to
say that all estates must undergo either probate or an administrative
proceeding. Some people have taken the time to plan ahead and have done proper
estate planning to help avoid both probate and administrative proceeding. Both
can be avoided by setting up a trust and properly transferring your assets into
it. Probate and Administrative proceedings are time consuming and can be
difficult and stressful. If you need help planning to avoid getting stuck going
to court or have a loved one that has recently passed away and need help
figuring out what to do next just pick up the phone and call us. We offer free
initial consultations and have years of experience when it comes to planning or
probate/administration.
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