Learning the Probate Process
After an individual’s death, their assets and debts must be deal with. This is done in a process called probate. It’s initiated by the executor of a will or someone who applies at a local courthouse to be the executor of the deceased person’s estate. While it may sound legally complicated, probate can be easily broken down into four simple steps so that anyone can simply understand it.
A Petition For Probate Must Be Filed
As you learned above, the probate process starts with a petition submitted to a local courthouse. In the event the will state an executor, the petition is submitted for the process of probate at the courthouse. If there is no will, a petition is filed to appoint an administrator or personal representative of the estate.
This probate request must be filed at a courthouse in the country where the deceased person lived at the time of their death. As an executor, you’ll have to submit a legal death certificate alongside the petition and the will, if there is one present. The courthouse will officially set a hearing date to decide on the approval of the executor of the estate.
A notice of the probate court hearing will be provided for all of the decedent’s beneficiaries and heirs. Beneficiaries are those who are named in the will as getting assets awarded to them. Heirs are those who would naturally inherit the deceased person’s assets under the law if there was no will present. This way, they can show up to the probate court hearing if they would like to object to the petition. In addition, the notice of the probate hearing will be published in the local newspaper to alert others of proceedings. This is helpful for people like creditors who are owed debts from the decedent.
Undergo The Probate Hearing
On the date of the probate hearing, there are a few things you can expect to happen. The probate judge will look over the will to ensure its validity. Anyone of the beneficiaries or heirs can object to the validity of the will for various reasons. This could be simply that it wasn’t created properly or that another person has a more recent will. At this time, objections can be also made about the executor of the will.
Most Wills include a self-proving affidavit. This is when the deceased person and multiple witnesses signed the will at the time of its erection. Most courts will find this self-proving affidavit worthy and validate the will. In the event, there is no self-proving affidavit included with the will, the person who saw the deceased person sign the will can testify in court to its legitimacy. This person will be required to sign a sworn statement that states they not only watched the deceased person sign the will but the will present in the court is the one they saw signed.
If the will is proven valid, the court will grant the executor the right to handle the estate. If there is no will present, the court will appoint a personal representative to handle the settlement of the estate. This is typically the surviving spouse or adult child of the deceased person. In the event this person declines the responsibility, the court will appoint another person to handle the settling of the estate. Both the executor and the personal representative are considered interchangeable terms throughout the rest of this informative article about the probate process.
The executor will receive formal legal documents that specify their authority over the deceased person’s estate. Depending on the state that the probate court hearing took place, these legal documents can go by a few different names. Some of these include letters testamentary, letters of authority, and letters of administration.
In some cases, the executor may need to post a bond before they can accept these legal documents giving them authority over the estate. This bond essentially acts as a special type of insurance that will reimburse the estate in the event the executor commits a grievous error. This error can be intentional or unintentional. Either way, if it results in financial damage to the estate or its beneficiaries, the band kicks in to reimburse those who were damaged.
In some states, the beneficiaries of the will can unanimously reject the requirement of the bond for the executor. Also, there are some written provisions that can be placed within the will to dismiss the need for the bond. However, there are still some states that don’t honor these exceptions. Other states may not honor them if the executor ends up being someone who lives out of state or is not the person who was specified as the intended executor in the will.
The Executor Must Notify All Creditors And Take Inventory Of The Estate
The personal representative’s first task is to actually locate and take possession of the deceased person’s assets. It’s their job to ensure their safety during the entire probate process. Not all will specify the deceased person’s assets. In addition, some may have assets they never told those closest to them about.
For this reason, the executor must investigate the deceased person’s documents to identify any hidden assets. Typical documents used include insurance policies and tax returns. They may need to go through other documentation at the home or office of the deceased person to ensure they’re not missing any assets.
Part of protecting the assets in the estate requires the executor to be on top of things like property taxes and mortgage payments. It’s their sole responsibility to ensure they’re being taken care of throughout the entire probate process. This way, the estate doesn’t lose any sort of property or have foreclosures.
To protect non-real estate assets, the executor may decide to take physical possession of them. Things like vehicles and collectibles can be stored in a safe location throughout the probate process. The executor should be thought of as the safe handler of the deceased person’s assets until they’re safely passed on to their rightful owners.
Once the probate court has granted a personal representative for the deceased person’s estate, they must give out a written notice to all the creditors of the estate. Each particular state will have specific laws regarding how each creditor must be notified. It’s best to check in with a probate attorney to ensure that you’re doing this written notice correctly so there are no legal ramifications later on down the road.
This step basically allows any of the deceased person’s creditors to take action to claim assets to remedy the payoff of the debt. Each creditor is given a limited time period in which they can make a claim on an asset of the estate. This specific time frame will vary depending on the state’s regulations. Many states require that the personal representative also publish the deceased person’s death in the local newspaper to notify unknown creditors of their death. Again, checking in with a probate attorney is your best bet in determining just what the requirements are in your state.
Each creditor will need to contact the executor with their claim for money that was owed to them. If the executor believes that a claim for funds is not valid, they can reject the claim. In this case, the creditor will need to petition the court so that the probate judge can make the final decision about whether or not they get paid.
The personal representative is also going to need to do an inventory of the decedent’s property. This includes real property, bonds, stocks, business interests, and any other type of asset the deceased person had. The value of many of the deceased person’s assets can be determined via account statements. However, some assets can be more difficult to judge the value of. This is when an appraisal is utilized to determine the real value of the asset.
Some states will mandate a court-appointed appraiser to value the assets of the deceased. If you would like a second opinion or your state doesn’t require any specific court-appointed appraiser, you can consider hiring an independent one. Independent appraisers are commonly hired to appraise non-cash assets. The personal representative is responsible for the organization and the overall inventory of the estate assets.
Most states will require that the personal representative submits a written inventory report of the deceased person’s assets. This report is to include a few different things. First, all of the deceased person’s assets should be clearly stated. Each asset should have an individual value listed next to it. Lastly, next to the value of the asset, it should be shown how that value was determined. For example, an account statement that was used or an appraisal report that was given to the executor.
Title Transfers Happen
Once the waiting period for the creditors to file a claim has expired, the approved bills and claims are paid from the estate. The executor basically uses the funds from the estate to pay off any valid claims that were turned in. They’ll also use the funds to pay for debts that were accumulated during the deceased person’s final illness and burial or cremation services.
The personal representative will petition the court to get the authority to transfer the assets which are left in the estate to the will’s beneficiaries. If there is no will, the personal representative will transfer the assets according to the intestate succession laws. These vary depending on the state in which the estate is set up.
Before the court will typically grant permission for the distribution of the remaining assets of the estate, they will require a complete accounting summary from the executor. This summary will show all of the financial transactions that took place throughout the entire probate process. Many states will provide the executor with an easy-to-fill-out form to satisfy this requirement.
When the will specifies creating a trust for a spouse, minor, or an incapacitated family member, the personal representative will transfer the funds to the trustee. The personal representative must keep close records of how the assets were managed throughout the entire probate process. This can be waived if all the beneficiaries agree and this happens in a state that allows the waiver.
The personal representative will also be responsible for filing the deceased person’s income tax returns for the year that they died. This will help to determine if the estate is liable for any taxes and allow the personal representative to file the right tax returns for these taxes. The taxes are paid from the estate’s funds. If there is not enough money in the estate’s account, then the state will require some of the assets to be liquidated to raise the necessary funds. Most estate taxes are required to be submitted within nine short months after the person’s passing.
As you can see, the probate process isn’t too overwhelming when you break it down. These four main steps can help you to pave the way through the probate process if you find yourself named as an executor or personal representative for a deceased person. Throughout this process, you’ve also learned that many of the steps require you to have a good understanding of the state’s laws regarding the probate process. Hiring a probate attorney can help you better understand the state laws and perform your role as an executor or personal representative more effectively. For more business information please check our LLC Formations home page.