Probate is the process of settling and administering estates. An estate is opened when someone passes away but can also be opened when there is a guardianship proceeding. The Clerk of Court’s office has authority over probate matters subject to certain exceptions.
Settling the estate of a deceased person involves winding up the financial matters of the decedent, collecting assets, paying debts, and distributing the remaining assets according to the terms of the will or according to the law that applies when there is no will. Holographic wills, which are handwritten, are acceptable once proven. In many cases, there is no need to open an estate when a person passes away. Unless waived, a spouse has the statutory right to their elective share of the decedent’s estate. Wills may be contested for varied reasons. The main two reasons for a will contest occur when the decedent lacked testamentary capacity to make their will, or the decedent was subjected to undue influence.
Generally, it is the duty of the appointed personal representative to take over the assets of the decedent and to manage and protect those assets. The personal representative must file an inventory and list the value of the assets at the time of the decedent’s death. General creditors have a limited period to file a claim against the estate and claims can be disallowed if they are untimely or unsupported by the law. A personal representative must timely file a notice of disallowance of the claim if it is unsupported. Similarly, when a creditor’s claim is disallowed, a creditor must timely file suit or be forever barred from collecting on its claims. After paying the debts and any taxes owed by the estate, and after distributing any remaining assets of the estate to the heirs, the personal representative must prepare and file a final settlement and accounting. Generally, settlements may not be filed until the time for creditors to file claims has expired. A periodic settlement may be required depending on how long the estate stays open.
The law allows certain individuals to ask for a direct transfer of estate assets without the need for further clerk proceedings. This is known as dispensing with administration or small estate administration and can be used when the decedent’s personal estate is below a certain monetary threshold. The law recognizes certain claims as “preferred,” such as 1) funeral expenses or 2) debts or taxes with a preference under State or federal law. People, including a surviving spouse or child(ren), may provide proof of payment of a preferred claim and petition the Clerk of Court to be reimbursed up to the amount of the paid claim. Personal representatives are entitled to reasonable compensation for their services and are paid from estate assets subject to the approval of the Clerk.
The Clerk of Court also oversees the appointment of various fiduciaries in other settings such as when someone is appointed as guardian or limited guardian.