The probate process ensures that the estate of a deceased person (the “decedent”) is transferred the way they wanted. If the decedent left a will, that provides instructions for what to do with their assets. If they died without a will, known as “dying intestate,” laws in DC and Maryland establish procedures for determining how to transfer their property. Someone must file a petition with the appropriate court to begin a probate proceeding. This might be the person named as the personal representative in the decedent’s will, or it might be someone seeking appointment by the court as the personal representative of a person who died intestate. Probate can be a very confusing process, made more so by the fact that the person going to court might be grieving the loss of a loved one. If you need assistance with a probate proceeding, a DC and Maryland probate attorney can help you understand your rights and options, and guide you through the court process.

When Is Probate Necessary?

A probate proceeding is necessary in almost any situation where a decedent leaves assets and debts behind. In DC, a personal representative or personal representative must file a petition with the applicable probate court. This is the Superior Court, Probate Division in DC, and the Orphan’s Court in Maryland. If the court grants the petition, it will issue Letters of Administration that allow the administrator or representative to act on behalf of the decedent’s estate. The proceeding continues after this point, possibly with further court involvement, as the administrator or representative accounts for the estate’s assets and debts and makes distributions according to the will or the laws of intestate succession

When There Is a Will

A last will and testament should designate someone to act as the administrator of the decedent’s estate. This role is sometimes known as the executor or executrix, but it is more commonly known as the personal representative. The administrator must file the original will with the Register of Wills, either in DC or in the Maryland county where the decedent resided. This should be done as soon as possible in order to avoid missing tax deadlines or other important dates.

Next, the administrator should file a petition for appointment as Personal Representative for probate in probate court, along with a copy of the will. Anyone challenging the validity of the will or the administrator’s ability to serve may raise objections at this point. The court may hear other challenges to the will, the administrator, or other aspects of the probate process. Eventually, it will either grant or deny the administrator’s petition.

When There Is No Will

A person who dies intestate leaves no legally-binding instructions for what is to become of their estate. Someone must petition to act as their personal representative. This is usually a family member, but it does not have to be someone related to the decedent. The personal representative of an intestate decedent has a fiduciary duty to distribute the estate according to DC or Maryland law. A probate court may have to decide between competing petitions for appointment as personal representative.

Once the court has granted a petition and appointed a personal representative, intestate succession laws determine how to distribute the estate’s assets. Succession is based on the decedent’s surviving relatives. Distribution usually goes to spouses and children first, followed by parents and siblings if the decedent was not married and had no children.

What Issues Will a Probate Proceeding Resolve?

Once the court has granted a petition and appointed a personal representative, that person has the job of identifying and valuing assets, paying debts, and distributing the remaining assets to the decedent’s heirs. This can be a lengthy and difficult process, depending on the size and complexity of the estate.

Steps in the probate process usually includes:

• Locating the decedent’s assets. This often includes changing title to assets from the decedent’s name (e.g. “John Smith”) to the name of the estate (“the Estate of John Smith”).
• Determining the value of estate assets as of the date of death. The value of assets, for the purposes of probate law, is based on what they were worth when the decedent died.
• Identifying and locating the decedent’s heirs. Even if the decedent left a will, an administrator might have trouble locating heirs. In intestate cases, the representative must identify and locate all of the heirs.
• Identifying and notifying creditors. Appointment of an administrator or representative usually involves publication of a notice in a local newspaper, but administration of an estate may also require direct notice to creditors.
• Paying debts. The administrator or representative is responsible for paying outstanding debts from the assets of the estate.
• Paying taxes and filing returns.
• Distributing the remainder of the estate to the decedent’s heirs.

What Are Some Possible Complications During a Probate Proceeding?

The job of a personal representative can be complicated enough with just the basic functions of the role. Sometimes, additional complications arise, such as:

• Challenges to the personal representative’s performance. A person with an interest in the estate, such as an heir or a creditor, can claim that the administrator or representative has failed to fulfill their fiduciary duties.
• Challenges to the will itself. A will is not valid under certain circumstances, such as if it was signed under duress, or if the decedent signed another will at a later date. The person challenging the validity of a will has the burden of proving that it is invalid.
• Assets cannot be located. A decedent might have left assets that are difficult to find. This can delay the probate process.
• Debts exceed the value of estate assets. If the decedent owed more money than the value of their property, there may be nothing left to distribute to the heirs.

How Does a Probate Proceeding End?

The personal representative can close probate once all the estate’s debts and taxes have been paid, and all assets have been distributed. In DC an estate will automatically close after 3 years if the personal representative does not formally close the estate. The personal representative may need to submit a final report or inventory prior to closing the estate.

Probate attorney Joyce Ann Williams represents people dealing with estate administration issues in the District of Columbia and Maryland. Please contact her at info@jwilliamslaw.com or at (301)585-1970 for additional information about her probate services.