Skilled Representation In The Probate Process

The probate process refers to the legal procedure for settling a deceased person’s estate. A personal representative (executor or administrator) must be appointed by a court official who serves the county where the decedent resided. That officer is called the Register of Wills in Delaware, Pennsylvania, and in many other states, but may go by different titles in other states. A duly appointed personal representative is authorized to collect the decedent’s assets, and is obliged to use those assets to pay debts and expenses of the estate, and to distribute the remaining assets to heirs.

Probate cases must begin in the county where a deceased person resided. If there is real estate in other counties, ancillary probate proceedings will be needed in each of them, after the original probate case is filed in the decedent’s primary residence county.

At the Law Office of Kevin A. O’Brien, we understand the importance of navigating this process with care and sensitivity. Our firm accepts probate cases in Delaware and in nearby Pennsylvania counties.

At our estate planning, administration and probate firm, our father-son team brings over 40 years of combined legal experience. Our approach focuses on accessibility and transparency, enabling us to offer personalized services with reasonable fees. We will strive to make the probate process as efficient as possible during this difficult time.

Three Steps In The Probate Process

The probate process involves key steps that must be followed to ensure a smooth transition of assets. The three steps in the Delaware probate process are:

Step One: File A Petition

A petition must be filed with the Register of Wills to appoint a personal representative. If there is a will, the original must be filed and accepted as valid by the Register of Wills. The personal representative is called an executor if named in a will, and an administrator in other cases. Being named as an executor in a will does not automatically give the person named immediate access to the decedent’s property; it merely serves to nominate the person named, if the will is accepted as a valid will by the Register of Wills.

The Register of Wills may refuse to appoint the person named in the will if, for example, the person named has been convicted of a serious felony or if other credible objections are raised to the person’s competence or character. The person who is appointed to serve as personal representative is given “short certificates” that prove that he or she is duly authorized to handle the deceased person’s personal property.

Step Two: File An Inventory

The personal representative must file an inventory of the deceased’s assets within three months, but extensions of the time to file can be granted. This inventory must include all property owned by the deceased, valued as of the date of death. This step is crucial in determining the distribution of assets according to the will or intestate laws.

Step Three: File An Account

An account must be filed within one year after a personal representative has been appointed. The accounting must explain what happened to the assets, subtracting expenses such as funeral costs, credit card debts, medical bills, legal fees and fees charged by the Register of Wills. The fees charged by the Register of Wills vary from County to County.

Under Delaware law, real estate is generally deemed to pass directly to beneficiaries, unless the will specifically instructs the executor to sell it. The inventory filed by the personal representative states who has inherited the decedent’s real estate. The personal representative does have full power to deal with the decedent’s personal property, such as cars and bank accounts, unless these assets pass through beneficiary designation, joint ownership or a trust directly to heirs.

Personal representatives should also be aware of potential pitfalls. In most cases, real estate passes directly to heirs, not through the hands of the personal representatives. Consequently, expenses related to that real estate are their personal expenses, not those of the recently departed former owner. When real estate is subject to a mortgage, those who inherit it take it subject to the mortgage unless the will specifically directs the executor to pay it off.

The Register of Wills will allow deductions for some real estate related expenses incurred shortly after the date of death, but later payments will not be permitted on the estate accounting. Despite this, personal representatives often use estate cash to pay these expenses for the convenience of beneficiaries who often lack the cash needed to make these payments. When these expenses are paid, but not shown on the accounting, the actual cash available for distribution to beneficiaries will be less than the amount shown on the estate accounting.

Beneficiaries can be expected to ask questions. It is always best practice to keep them fully informed. To avoid misunderstandings, it is crucial to maintain accurate records and seek guidance from a qualified probate attorney.

Personal representatives must also be aware that creditors come first, and that not all creditors are treated equally. Administrative expenses, funeral bills and medical debts have priority over unsecured debts, such as credit card balances.

Commonly Asked Questions About The Probate Process

If you need support for the probate process, our probate lawyers can help you navigate the complexities of probate, from understanding the laws to ensuring that your loved one’s wishes are respected. Below, our attorneys answer some frequently asked questions.

How long does probate take in Delaware?

The probate process in Delaware takes a minimum of eight months from the date of death. Creditors have eight months to assert claims, so an estate cannot be formally closed before the creditor claim period has ended.

However, it can take much longer. The size of the estate and the number of beneficiaries involved can influence the length of the probate process. Many estates are involved in litigation to assert wrongful death claims or to settle other disputes. Sometimes it is hard to identify or locate beneficiaries.

What is the difference between a probate lawyer and an estate lawyer?

A probate lawyer focuses on the administration of a deceased person’s estate, while an estate lawyer handles planning and preparation of documents such as trusts and wills. Practical experience gained from our probate practice helps us render better advice to our estate planning clients.

Do I need a lawyer to file a will in probate court?

While it is possible to administer an estate without a lawyer, it is highly recommended to seek the guidance of a probate attorney to ensure the correct and efficient handling of the process.

Get Started With Your Probate Matter

If you are dealing with the Delaware probate process, we can help you understand your options and make informed decisions. Reach out to us today at 302-888-2707 or via our online contact form to schedule a no-obligation consultation.