Steps in the Probate Process
When you are appointed personal representative for the Deceased's estate, there are many steps that you will need to take to get through the probate process.
- First, find out if the Deceased had an estate plan that includes a will or other directions about how to handle the estate after death.
- Determine the Deceased’s assets; a review of all of the Deceased’s financial records is essential. An online asset search might be helpful in order to search for accounts and property unknown to the administrator of the will or estate.
- Determine if the estate needs to go through a full probate administration or if a small estate procedure will be sufficient and, if so, what type:
- Relief from Administration: An estate may not need to go through a fully administered probate (where the court is involved) if there are no assets or if all assets are defined as exempt from administration. Probate may also be unnecessary if the Deceased has undertaken careful estate planning designed specifically to avoid probate (for example, if the Deceased has constructed a trust entity to own all of his or her assets).
- Small Estate Proceedings or Affidavit of Collection: Each state has a unique, simplified procedure for estates valued under a certain monetary threshold. For this procedure to be available, many states require that the estate not contain real property.
- Informal Probate: Simplified or informal probates are used for estates where court supervision isn’t needed. Any problems with the estate such as legal disputes or uncertainties with the probate proceedings, however, will disqualify the estate from an informal probate process. Furthermore, depending on the size and complexity of the estate, a court may require that the personal representative post a bond to insure the assets of the estate and make certain its proper administration.
- Formal Supervised Administration: Estates valued at or above the threshold for simplified probate and/or those with disputes or complications must proceed through the normal court supervised probate process.
- Determine who will act as personal representative (PR) for the probate process. If there is a will, the executor will often be the PR. If there is no will, the next of kin may be asked by the court to be the PR. All states have an order of priority they follow to determine the PR. If none of the parties choose to become appointed or are able to qualify, a creditor of the Deceased may be appointed. (Please note: In all cases, the PR must be over 18.)
- File the relevant documents with the court to be designated the PR.
- If no challenges arise regarding the status of the PR, begin the rest of the process.
- Give notice of administration: You must publish notice of administration in a newspaper of general circulation; your state probate code will explain when and how often you must publish the notice. You also need to perform a search for creditors and heirs and serve notice of administration to them. The notice in the paper and the one you give to the heirs, creditors and other interested parties must give instructions about how claims may be presented and provide a deadline. This will also be described in the state probate code. (As always, if you have questions, it is best to consult an attorney.)
- The PR will need to check in with the court and file forms occasionally, but the process is really up to the PR to execute and complete. (Please note: If the PR is delinquent or does a poor job, the court may step in and appoint a new PR.) Overall, the PR should expect probate to take about a year, but may be longer due to complexity. Most states have a time limit on the probate process, and an 18-month time period to complete the process is not uncommon. The duties of a PR may vary slightly depending upon location but to complete the probate process, the PR must complete several steps:
- Inventory the assets. A preliminary inventory was probably completed in order to determine if probate was necessary, but now the PR must compile a detailed list of all the Deceased’s assets and their value. This list is required to be available to anyone who can demonstrate an interest in the proceeding and who requests it within the period of time in which someone can file a claim on the estate.
- Collect the assets. The PR must transfer money into a designated estate account to be used to distribute the assets and pay expenses such as probate fees and funeral costs. Property may also need to be sold and securities may need to be transferred. Collecting insurance money, last paychecks and dividends of the Deceased may also apply.
- Handle any day-to-day details. This includes tasks like shutting off utilities and notifying an employer(s), social security and others of the death. This also includes more routine concerns such as canceling prescription medications (if they auto-refill or are mailed), canceling magazine or newspaper subscriptions, stopping any automatic bill pay services and marking the mail as “deceased, return to sender.”
- Serve notice to heirs and creditors so that they may file claims on the estate. Creditors have a specific length of time in which to file a claim on the estate. The time limit depends on the state, which can vary from 60 days to several years depending on the state code.
- Investigate the claims made on the estate to make sure they’re valid.
- Determine if there are heirs and what share of the estate they will receive. If there is no will, follow state regulations in determining how much of the estate the heirs may receive.
- Continue paying relevant bills during the probate process. This includes bills like mortgages, utility bills, etc.
- Pay outstanding debts and valid claims on the estate.
- File a tax return for the Deceased and pay income and estate taxes.
- Follow the order of priority of payment described in your state’s probate code. Most state codes direct that expenses of administration, funeral bills, attorney’s fees, claims of the government and expenses of last illness will have priority over secured claims, and over the claims of general creditors.
- When the court has given permission, distribute the rest of the estate to the heirs.
- Finally, file the receipts with the court and wrap up any closing details of the estate.
- At this point, the probate process is complete. Remember, this is a lengthy process, and it can take a year or longer depending upon how complex the Deceased’s estate is. It is important to consider hiring an attorney to assist the PR through the process, as it can be complicated and difficult to navigate alone.
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