What is Probate?
- Probate is the legal procedure in which a deceased person’s debts, effects, and assets are listed and sold, debts are paid, and assets are distributed to beneficiaries or heirs.
- Probate cases are generally overseen by a county or state probate court and involve proving a will (testate) is valid (if there is one) and then appointing someone to administer the estate until it’s settled and taxes.
- Probate may not be needed in your area if ALL assets are in a trust (consult with an attorney for clarification).
What is the Probate Process?
In general:- If there is a will, it is submitted to the probate court.
- A notice of Petition for Probate is published, and an Executor/Personal Representative is appointed.
- The Executor/Personal Representative then files a formal petition with the court to administer the decedent’s estate.
- Creditors may make claims against the estate.
- The Executor/Personal Representative identifies and gathers assets of the estate.
- The Executor/Personal Representatives secure and maintain assets.
- The Executor/Personal Representatives liquidates assets when necessary.
- The Executor/Personal Representatives file final tax return(s).
- The Executor/Personal Representatives file final paperwork with the court detailing expenses and debts paid.
- The Executor/Personal Representatives file paperwork with the court detailing assets received and disbursed.
- The Executor/Personal Representatives file paperwork with the court detailing how estate funds were used.
- Once approved by the court, the Executor/Personal Representatives distribute balance of estate to beneficiaries and heirs.
When there is no will (Intestate)
- An administrator will be appointed by the court. Usually an adult child(ren), or domestic partner of the deceased.
- The administrator acts as a personal representative or executor.
- The administrator is to identify heirs.
- The administrator is to locate and value assets and debts.
- The administrator is to distribute assets.
Do I need a Probate lawyer?
Legal requirements may vary from state to state. I always recommend consulting with an attorney, financial, and tax advisor.- It is important to realize that a missed deadline or failing to follow proper procedures or paperwork can result in an Executor or Personal Representative being personally liable for mistakes or debts.
General Duties of an Executer / Personal Representative
- Create and maintain an inventory of the assets of the estate.
- Determining which assets may or may not fall under probate purview.
- Receiving payments due to the estate.
- Opening an estate checking account.
- Have assets appraised or valued.
- Determining who will receive items / assets from the estate.
- Giving notice to potential creditors.
- Investigating claims made against the estate.
- Paying outstanding estate debts and claims.
- Paying expenses to administer / maintain the estate.
- Handling paperwork including notifying Social Security of the death, filing court documents, and discontinuing utilities when necessary.
- Distributing property and assets to beneficiaries.
- Filing final tax return(s).
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