Probate is the legal process through which a deceased person’s estate is properly distributed to designated beneficiaries and any debt owed to creditors is paid off. Your estate executor or the attorney representing your estate typically initiates probate. During this process, a probate court validates the will and then authorizes the executor to distribute the estate to the specified beneficiaries. Any taxes, liens or debts your estate may owe are also paid at this time. The lawyers and court fees are paid from estate property, which would otherwise go to the people who inherit the property.
If no will exists, a further administrative proceeding must be held to determine how the estate will be divided. In this case, the court will name an administrator for the estate, and this person will have to follow the probate judge’s instructions on how to distribute the property.
What Is Involved in Probate?
After a person’s death, the person named in the will as executor (or, if you die without a will, the person appointed by a judge) files papers in the local probate court. The executor proves the validity of the will and presents the court with lists of the deceased person’s property, debts and names those who are to inherit property and assets. Then, relatives and creditors are officially notified of the death.
The executor must find, secure and manage all assets during the probate process, which commonly takes a few months to a year. Depending on the contents of the will as well as the amount of the debts owed, the executor may have to decide whether or not to sell real estate, securities or other property.
The executor will have to file a request in the county where the deceased person lived at the time of their death. The paperwork will ask for you to be officially acknowledged as the legal executor representing the estate. In addition to the petition, you will need to file a valid will, if one exists, and the death certificate. Then the court will schedule a hearing to approve the executor (or hear objections from other parties). If you are approved as executor, the court will officially open the probate case and you will now be able to act on behalf of the deceased’s estate. File a request (called a petition or application) for probate in the county in which the deceased person was living at the time of death. You will also need to file the death certificate and the original will (if there is one) with the court.
- Publish a notice of the probate in local newspaper according to court rules. Mail notices to creditors you know about.
- Mail the notice to beneficiaries and heirs, as required by the court.
- File proof that you properly published and mailed the notice.
- Post a bond (if required by the court), which protects the estate from any losses you cause (up to a certain dollar amount). The amount of the bond depends on the size of the estate.
- Prove the will’s validity by providing statements from one or more witnesses to the will. This is often done by submitting the “self-proving affidavit” that was signed by the witness in front of a notary at the time the will was signed.
- File other documents required by the court.
Administering the Estate
As executor, you are in charge of keeping estate property safe during the probate process. You will prepare a list of the deceased person’s assets and, if necessary, get assets appraised. You’ll need to:
- Get an employer identification number for the estate from the IRS.
- Notify the state health or welfare department of the death, if required by state law.
- Open an estate bank account.
- Arrange for preparation of income tax returns.
- Prepare and file an inventory and appraisal of estate assets.
- Mail a notice to creditors and pay debts (state law may impose a deadline on you).
- If the court requires it, file a list of creditors’ claims you have approved and denied.
- If required, file a federal estate tax return within nine months after death. (Most estates are not large enough to owe federal estate tax).
- If required, file a state estate tax return, usually within nine months after death. (Fewer than half the states impose their own tax.)
Closing the Estate
Once everything has been distributed, you will submit receipts and records of everything to the court and then ask for the estate to be closed – and to be released from the role of executor. You will need to:
- Mail a notice to heirs and beneficiaries that the final hearing is coming up. (This must be done a certain period of time before the hearing; the court will have a rule.)
- File proof that you mailed the notice as required.
- Get the court’s permission to distribute property.
- Transfer assets to the new owners and get receipts.
- After you distribute assets and all matters are concluded, file receipts and ask the court to release you from your duties.
How Long Does Probate Take?
The probate process can take anywhere from six months to 2 years to complete. The length of the process depends on the size of the estate and whether there are any unusual assets that require special attention. Also, unexpected issues may arise that can prolong the process. When there is a will, the process is generally simpler because the administrator and heirs have already been identified in the will.
Do I Need an Attorney for Help with Probate Issues?
A skilled and knowledgeable probate attorney will make the probate process easier and run much more smoothly. Timing is incredibly important, and state laws vary widely. A probate attorney can help you understand your state’s laws, and will ensure all deadlines are met. Intestate estates and contested wills could especially benefit from the assistance of an experienced probate attorney.
If you would like some guidance as you go through the process, a probate lawyer can help. To schedule a meeting with an attorney from Olson Probate, please call 714-847-2500.