Probate is the court process of collecting the deceased person’s assets, paying debts and taxes, and distributing what’s left to inheritors. Many people fear it is difficult and complicated, but it can actually be simple.
Probate refers to the process whereby certain decedent’s debts may be settled and legal title to the decedent’s property held in the decedent’s name alone and not otherwise distributed by law is transferred to heirs and beneficiaries. If a decedent had a will, and the decedent had property subject to probate, the probate process begins when the executor, who is nominated by the decedent in the last will, presents the will for probate in a courthouse in the county where the decedent lived, or owned property. If there is no will, someone must ask the court to appoint him or her as administrator of the decedent’s estate. Often, this is the spouse or an adult child of the decedent. Once appointed by the court, the executor or administrator becomes the legal representative of the estate.
We have some simple steps to Probate
- How Probate begins? Start by letting the probate court know that you are the executor or personal representative, whichever term is used in your state. If there’s no will, in some states you’ll ask to be the “administrator.” notice of the court hearing regarding the petition must be provided to all of the decedent’s heirs and beneficiaries. If an heir or beneficiary objects to the petition, they have the opportunity to do so in court. generally, notice of the hearing is published in a local newspaper. This is to attempt to notify others, such as unknown creditors of the decedent, of the beginning of the proceeding.
- The court will schedule a hearing, to give interested parties a chance to object to your appointment as executor. Before the hearing, you’ll need to send formal legal notice to beneficiaries named in the will and to heirs under state law. You’ll also send notices to creditors you know about, and publish a legal notice in a local newspaper to alert others. An inventory of all of decedent’s probate property, including real property, stocks, bonds, business interests, among other assets, is taken. In some states, a court appointed appraiser values the assets. When necessary, an independent appraiser is hired by the estate to appraise non-cash assets.
- The personal representative must determine which creditor’s claims are legitimate and pay those and other final bills from the estate. In some instances, the personal representative is permitted to sell estate assets to satisfy the decedent’s obligations.
- The court may require you to post a bond—a kind of insurance policy that protects the estate from losses you cause it, up to a certain dollar amount. If bond is required, its amount will depend on the size of the estate. Bonding companies, most of which are divisions of insurance companies typically charge a fee of about 10% of the face amount of the bond. You can pay for the bond from estate funds.
- Following the waiting period to allow creditors to file claims against the estate, and all approved claims and bills are paid, generally, the personal representative petitions the court for the authority to transfer the remaining assets to beneficiaries as directed in the decedent’s last will and testament or, if there is no will, according to state intestate succession laws. If the will calls for the creation of a trust for the benefit of a minor, spouse or incapacitated family member, money is then transferred to the trustee. Unless the beneficiaries of the estate waive the requirement as allowed under some state laws, the petition may include an accounting of how the assets were managed during the probate process. Once the petition is granted, the personal representative may draw up new deeds for property, transfer stock, liquidate assets and transfer property to the appropriate recipients.
- When the creditors claim period has passed, you’ve paid debts, file all necessary tax returns, and settle any disputes, you’re ready to distribute remaining property to the beneficiaries and close the estate. Closing the estate releases you from your duties as executor. Along with your request to close the estate, you’ll need to give the court an accounting of your activities. The accounting shows where all the estate assets are going and shows that you’ve paid creditors. It also documents any income the estate assets received during probate and any losses to the estate—for example, if an asset declined in value. Some courts provide fill-in-the-blanks accounting forms. If yours doesn’t, you can look at documents filed in other cases (probate records are public) to get an idea of what’s required.