Probate: Initial Considerations

After a loved one has died, family often believes they must immediately contact an attorney to start legal proceedings. Although I believe it is important to take a few minutes to talk to people under such circumstance, as an attorney what I often windup telling them is:

  1. Understand that the reason to file probate is to manage the assets of the deceased. If there are no assets, probate may not be needed.
  2. Having a will does not start probate: a will is more like a to-do list that cannot be completed without a judge’s approval to act.
  3. A will nominates a person to act as personal representative- prior to appointment a personal representative (executor) does not have authority to distribute the decedent’s property.
  4. Only a court can appoint you as a personal representative and grant you the power to complete the instructions in the will.

Unless there are pressing concerns with property, asset management, dependents or other emergency situations, probate can be initiated at a measured pace. Immediate tasks may include:

  1. Complete funeral and/or burial process.
  2. Secure personal property of the deceased.
  3. Make sure pets are safe.
  4. Understand the needs of surviving dependents of the deceased.
  5. Locate the deceased’s assets: is there money or property in the decedents name alone?
  6. Consider where probate will be filed? Did the deceased have money or property in Oregon or elsewhere?
  7. Ask yourself: Are prepared to take on the role of personal representative (executor)? It can be time consuming and stressful. Your attorney will help you but you will be doing the leg work.
  8. Make an appointment with an attorney.

In the meantime, take time to grieve. We are sorry for your loss.

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