First, note that the probate process can apply whether or not the deceased left a will. (Dying without a will is known as “intestacy.) Probate is the process by which debts are paid and assets are divided after a person passes away. Generally, we think of the big board room where everyone intended to receive something (the “designees”) meet to hear an attorney read the will aloud and explain which possessions now belong to whom. While that is how it happens in the movies, different concerns and circumstances call for different probate procedures in the real world.
To get the probate process started, an interested party must submit a petition for probate. Included in that petition is a list of the interested parties, the interested creditors, whether the probate will be supervised, and the name of the person petitioning to be representative. If the deceased left a will, he or she likely selected the personal representative. If the deceased left no will, any heir at law can petition.
Formal or “Supervised” probate means that the court supervises everything that the personal representative does for the estate. The personal representative submits for the approval of the court an inventory of personal property in the estate; notice of sale, all bids received, and notice to other bidders that one has been accepted for real property in the estate; attorney’s fees; and the personal representative’s commission. In other words, supervised probate administration requires a lot of paperwork and court oversight.
Knowing a court must approve all decisions and notices is definitely a positive for families with complicated dynamics and special concerns. Court supervision provides a means of keeping the process objectively fair. However, it can also become cumbersome because relying on court supervision requires time and money.
Informal or “Unsupervised” probate means that the personal representative is given more discretion over how to administer the estate. In these cases, personal representatives have more latitude to conduct sales of real estate, distribute personal property, and set their own fees for compensation. Before commencing work, the personal representative sends notice to every designee, instructing them that the representative need not consult designees or the court before making any administrative decisions. Upon receiving notice, designees can object or request an accounting.
The unsupervised process may be better for families and designees who agree on how things should be distributed. It can be faster and requires less paperwork than supervised probate. However, serious issues can arise if designees do not completely trust the representative. If a designee feels the representative is mishandling the estate, he or she may petition the court to supervise. Keep in mind that these petitions have time limits.
How do you decide?
Not every state allows for unsupervised probate and those that do each have their own special requirements for how to go about it. As with any legal decision, it is important to consult a local attorney who is familiar with the local probate rules before deciding how to proceed. In the period during which an estate is administered, emotions may be running high and the people involved will likely be grieving. Probate administration, like so many other things we deal with at the Griffith Law Group, is a legal procedure, but it is deeply rooted in human experience.
If you would like guidance on how to balance these and other factors when deciding how to plan or administer your estate, please contact us.