You may be left with the responsibility of handling and managing a loved one’s estate. You may be the executor of their will or the heir who is supposed to take charge of the estate. In any case, the first step you need to take is to get the will or trust that the deceased might have prepared. If there is no will or trust, you do not need to panic as the process of managing the estate will remain the same. In case the deceased has left a will or has not used any estate management tool, you will have to go through the process of probate to get the estate. Because probate laws vary from state to state and can involve numerous complexities, it is always a great idea to consult and hire a probate attorney to help you with the case.
Probate is a legal process that is executed upon the death of a person to manage and distribute their asset. The following tasks are conducted during the probate process:
The requirements to initiate probate vary from state to state. Typically, these legal requirements are included in the estate probated codes and the intestate succession laws for the state in case someone dies without a will.
Probate is largely feared by the general population because it is perceived to be arduous and expensive. However, that is not true. The basic task of appraising and administering the assets needs to be done whether the estate is managed by an executor in probate or the assets are jointly owned or transferred to a living trust during the deceased’s lifetime. Besides this, many states have taken the initiative of simplifying the probate process over the years. In these states, there is no reason to avoid or minimize probate. Some instances that can make the execution of any estate management tool difficult are family disputes and lawsuits by heirs. In addition to this, there are types of property under the estate that can pass to the beneficiaries outside the probate. Thus, the process is not something to be scared of or avoided.
The types of probate proceedings allowed vary from state to state. Some of the common types of probate proceedings allowed across most states in the US are:
This type of probate is used when complex estates are involved and the intervention of a judge is required to make determinations. The proceedings for formal probate commence when an interested party, somebody who believes they are entitled to receive the assets from a deceased individual’s will, files a petition in the court to open a formal probate administration. The interested party is required to provide the following identification details to open the formal probate proceedings:
If the court finds that the identification details match the records, it appoints a representative to oversee the formal probate proceedings. The representative is none other than the executor named in the will. The procedure continues until the debts of the deceased individual are paid and the remaining estate is disbursed to the intended beneficiaries.
In the case of informal probate, the proceedings are initiate by filing an application with the probate court. In some states, you may be required to appear in person to file the application. The application is then verified by the probate registrar. If the registrar finds that the application is complete, they will issue a probate statement and appoint a representative to oversee the proceedings. The representative can then pay debts, taxes, and administer the estate without the supervision of the court.
Summary probate proceedings are useful when the value of the estate left behind by the deceased is less than US$75,000 or the individual has been dead for two years or longer. It is a more streamlined process compared to the other probate proceedings.
Like formal probate proceedings, summary probate begins after an interested party files a petition in court. However, unlike formal probate, no representative is appointed to oversee the estate administration. Instead, once when the court determines that the estate qualifies for summary probate it issues an order to transfer the assets to the intended beneficiaries.
While the requirements for initiating probate vary from state to state, the process is almost similar and involves the following steps:
In most states, the person in possession of the deceased’s will is mandated by law to submit an application or petition with the probate court as soon as possible. You may be required to submit the death certificate of the deceased along with the will. During this period, people who believe that the will is not properly drafted or are in possession of a more recent will can object to the filing. There is a possibility that someone may object to the personal representative appointed to administer the estate under the will.
The court calls upon witnesses to verify the validity of the will. Many will and testaments include self-proving affidavits that legally reaffirm that the will was signed at the time and place it is claimed to have been. In absence of these affidavits, the court calls upon witnesses to testify or sign a sworn statement to confirm that the will in question is the one they saw the deceased signing.
Upon the initiation of the probate proceedings, the court appoints the executor named in the will to oversee the proceedings. The executor is also known as a personal representative and estate administrator. The personal representative receives a document called the letters testamentary from the court. Also referred to as letters of authority or letters of administration, the document allows the personal representative to handle and get into transactions on behalf of the estate.
The personal representative may be mandated to post a bond before handling the transactions on the behalf of the estate. Most will and testaments have the provisions that the state is not necessary. In some states, beneficiaries can elect to unanimously reject the bond requirement.
The first task that the executor undertakes is to locate, account, and determine the value of the decedent’s assets. This is done to protect the assets during the probate proceedings. Collecting and accounting of assets can be a time-consuming task. In the case of real estate, the executor is not required to move into the residence to protect the property. But they should ensure that the mortgage payments are taken care of, insurance is renewed, and property taxes are paid. For other assets such as collectibles and vehicles, the executor has the right to move them into a safe location.
After the collection, the executor needs to determine the date of death values of the assets. This is done by analyzing account statements and appraisals. In some states, the court appoints appraisers while in the others the executor can choose someone of their choice.
It is mandatory for the executor to identify and inform creditors about the decedent’s death. Most states mandate printing about the death in a local newspaper to intimate unknown creditors. The creditors then get a limited window of time to bring their claims for the money they are owed. The exact time frame allowed for creditors to bring forth their claims varies from state to state.
Creditors with valid claims are paid using the estate fund. The estate fund is also used to settle the bills that the decedent may have incurred during the final stages of illness.
The personal representative will be responsible for filing the decedent’s personal income tax returns for the year they died. The executor will also undertake the responsibility of filing and paying the estate taxes. All the taxes are paid using the decedent’s assets.
When all the steps are taken care of, the personal representative files a petition in the court requesting permission for the distribution of the remaining assets to the beneficiaries named in the will. The permission is granted by the court after the executor submits a detailed accounting of every financial transaction they have engaged in. This requirement can be waived if all the beneficiaries collectively agree to do so.
An intestate estate is where the decedent does not leave a will or their will is rejected by the court. In such cases, the assets are distributed to the closest relatives determined by state law.
Hiring a probate attorney can help you in the following ways:
Are you looking to get a will executed? Fill in the form alongside and we will help you find the best probate attorney near you.