What is Probate?
The first few months after a loved one, family member or friend passes away can often be bewildering and confusing for those who are left behind. Besides the emotional aspect of the death, many practical questions arise at this time, such as who pays for the funeral expenses, what happens to the decedent’s assets and who handles any of the legal matters that invariably occur at this time. Many of the answers to these and other questions work themselves out through the process most commonly known as probate or estate administration.
At its simplest, the probate process is the legal process that takes place after someone’s death. During the process, the decedent’s assets are located, his/her debts paid, and his/her remaining property distributed to its new owners. This process takes a minimum of eight months, but typically lasts for a year or longer. The person who is in charge of handling these issues is called the personal representative. The articles in this series are intended to assist a personal representative of a decedent’s estate (i.e., the decedent’s assets) subject to probate in the District of Columbia Superior Court.
The articles in this series are intended to provide general instructions and advice; they should not be read as substitute for the specific legal advice that invariably will be required in connection with the probate process. The estate’s attorney frequently assists the personal representative in performing many of the tasks soon to be discussed. The two generally work together to accomplish the efficient and prompt administration of the decedent’s estate and to maximize income and estate tax savings. An accountant is also usually engaged to assist with administration of the estate, and, in particular, the preparation of Federal and District of Columbia tax returns
In general, when a person dies who lived in the District of Columbia, a decedent’s probate estate can be opened in the Probate Division of the Superior Court of the District of Columbia. If the decedent died with a valid will, the person(s) named as personal representative in the will has the priority to file a petition with the Superior Court to open the decedent’s estate and be appointed as personal representative. If the named personal representative(s) cannot or will not serve, the order of priority set forth in D.C. Code Sec. 20-303 establishes who has priority to file the petition and be appointed as personal representative. If the decedent died intestate (i.e., without a will), the priority of appointment for personal representative is also determined by D.C. Code, sec. 20-303.
Once appointed, the personal representative of a decedent’s estate is charged with promptly settling the estate and distributing its assets. The general duties of the personal representative are (a) to collect and preserve the assets of the estate, (b) to pay all debts, expenses and taxes and (c) to distribute the remainder of the estate as provided in the decedent’s will or by District of Columbia intestacy laws if the decedent died without a will. In addition to serving as the decedent’s representative, the personal representative assumes a position of trust with respect to all individuals and entities having an interest in the decedent’s estate, including creditors and beneficiaries
Besides the personal representative, there are several other persons who might have an interest in the estate of a decedent. These persons must be listed in the initial petition to open a decedent’s estate and must be kept apprised of the status of the estate at various points. These persons are defined as “Interested Persons” under D.C. Code Sec 20-101(d). Interested Persons generally include the following:
- Persons named in the decedent’s will to serve as personal representative, but only until a personal representative is actually appointed;
- Persons who have been appointed and who are serving as personal representative;
- The surviving spouse (if any);
- Legatees (i.e., persons who are to receive any of the decedent’s property under the will);
- The heirs-at-law of the decedent (i.e., persons who would inherit the estate if there was no will); and
- Creditors with claims in excess of $500.
Register of Wills.
During the probate process, the office that the personal representative and the estate’s attorney will interact the most with is the Office of the Register of Wills. The Register of Wills is the person in charge of the D.C. Superior Court Probate Division staff. The Register and her staff are responsible for the care and custody of all wills and pleadings and for the administrative processing of all pleadings. All orders prepared for the Court are first presented to the Register who reviews the documents and then makes recommendations to the Court. Often, the personal representative and estate’s attorney will meet with the Register of Wills and/or her deputies to hold a preliminary review and discussion of probate documents and procedures.
Note. Personal Representatives and attorneys should also take advantage of the Register of Wills Support line (202-879-4800) and Real Time Support Chat (http://www.dccourts.gov/internet/public/aud_probate/main.jsf) as initial steps in attempting to get answers to questions regarding probate procedures or documents.
The personal representative and estate’s attorney might also interact with the Duty Auditor, who is responsible for reviewing inventories and accounts of the estate. There are also court appraisers who might be a necessary accomplice when the personal representative has to appraise (or value) the probate estate’s assets.
The Register of Wills staff is generally helpful and friendly; however, like any government office, the best times to interact with them are generally earlier in the day rather than later.
Written by Allaya Lloyd.