Explaining Probate Law and How it Affects You

In 1990, Tom Carvel, the inventor of soft serve ice cream, passed away. With over 850 franchises throughout the nation, his empire was worth almost $80 million – a fact that his beneficiaries were not quick to forget. Following his death, it was discovered that he had a will in place between himself and his wife, Agnes, for all of the money to be placed into a trust. This would provide the surviving members of the family with a steady income and would also donate to various charities. Disagreement, however, arose between the administrators of the estate (two long time employees) and the family members. This caused a legal case to spring into action that has never reached a successful resolution.

Probate, legally speaking, is the process that occurs after a loved one has died. Its main purpose is to split up the assets of the deceased and to distribute the property among the beneficiaries. There are several steps that are involved in probate which include the following:

  • Providing a valid will to a court (and proving its validity);
  • Identifying / inventorying the property of the deceased;
  • Appraising the property and assets to find their true market value;
  • Paying off all of the debt and taxes owned prior to the death; and
  • Distributing all of the property and assets per the will or state law

This is a lengthy and emotionally-charged process that will typically be costly and time-consuming for the beneficiaries. It is not unlikely that considerable paperwork will be involved and that separate parties within the immediate family will need to seek legal representation to look out for their own best interests – to ensure that they are not being cheated out of assets that they are owed. Typically, the costs of the lawyers are paid from the estate and diminish the overall amount that each party receives.

Characteristically, probate will last anywhere from six to nine months following the death of the person in question. This, however, is only a generic timeline and will greatly vary depending on the circumstances of those involved. For example, should it be determined that there is property that needs to be sold, the process could be stretched out for several months as a suitable buyer and deal is found. In some cases, such as Carvel's case, the process can stretch out for years and even decades.

Although there are many different situations in which probate can be drawn out, one of the largest roadblocks that can be struck is that of a missing heir. Although this doesn't seem feasible, there are actually many different instances that can occur where an heir cam be identified but not located. For example, in some situations those involved in the case will have the name but no way to contact them. In other cases, the heir could come from an unknown or distant part of the family that was never in direct communication with immediate descendents.

Missing heirs are a serious issue for many cases and have long since been the focus of an industry that specializes in what is known as probate research. This is a genealogical process of attempting to track down heirs so that they can receive their rightful inheritance. Those who work in this industry go by a multitude of names, however, are most commonly referred to as probate researchers, heir hunters and are even referred to as forensic genealogists.

Dealing with a death is never a simple process. It is emotional and in many situations can be financially straining for a family. When the law has to become involved, this healing process can be lengthened, complicated and aggravated. The best chance of expediting the process? Hire a lawyer that you can trust to know your state's law and to look out for you and your family's best interests.