A Step-By-Step Guide to What Happens During Probate
When an individual dies, his or her estate will have to be put through a multi-step process called probate. This is the court’s way of authenticating their last will and testament, provided one was created, and ensuring that their assets are distributed among their heirs per their wishes. The exact process of putting an estate through probate can vary from state to state, but it will essentially follow the same basic steps:
· Step 1: Authenticating The Will
In most cases, the deceased’s will must be filed with the probate court as soon after death as possible. At the same time, petition or application to begin probate should be filed, along with the death certificate. A probate judge will need to confirm that the will is valid, which may involve a court hearing.
All beneficiaries will be given notice of the hearing so that they have the opportunity to appear and object if they feel the will wasn’t drafted properly or they have a more recent will. The court will determine if the will is legitimate, using witness statements provided either at the time of probate or when the will is signed.
· Step 2: Appointing an Executor
The judge will appoint an executor to oversee the probate process and settle the estate. Most often, the deceased will name their choice of executor in the will but if they don’t or there is no will, the court will appoint the next of kin, usually a spouse or adult child. The appointed executor will receive documents called “letters testamentary” that allow them to act on behalf of the estate.
· Step 3: Posting Bond
In some cases it may be necessary for the executor to post bond before they can accept the letters and begin acting for the estate. This serves as a sort of insurance policy, allowing the estate to be reimbursed if the executor commits an error that financially damages the estate and its beneficiaries. Some states allow beneficiaries to unanimously reject the bond requirement while others have a steadfast rule, particularly when the executor lives out of state.
· Step 4: Locating the Deceased’s Assets
The next step is locating all of the decedent’s assets so that they can be protected throughout the probate process. If there is real estate involved, the executor must ensure that all property taxes and mortgage payments are paid and insurance is kept current to avoid foreclosure before the probate process is completed. For other assets, the executor may take possession of them and they’ll also need to collect all statements and other documentation for any bank accounts, investment accounts or stocks and bonds.
· Step 5: Determining Date of Death Values
Once the assets have been gathered, their date of death value must be determined, usually via account statements or appraisals. In some states, the executor will be required to submit a written report listing each asset, its value and how that value was determined.
· Step 6: Identifying and Notifying Creditors
Because any creditors have a limited period of time to make claims against the estate, it is necessary to identify and notify them as quickly as possible. In most states, the executor will be required to publish a notice of death in the local paper to achieve this end. The exact time period for creditors to make a claim can vary from state to state and the executor always has the ability to reject claims if they feel they are not valid; if a claim is disputed the creditor can petition the court and the probate judge will make the final decision.
· Step 7: Paying the Decedent’s Debts
If any creditor claims are deemed valid, the executor must then make any necessary payments out of the estate funds. These will include any expenses incurred during the decedent’s final illness.
· Step 8: Preparing and Filing Tax Returns
The decedent’s final personal income tax returns for the year they died must be filed. If the estate is liable for any estate taxes, those returns must also be filed and any taxes due from either return should be paid from estate funds, usually within nine months after the decedent’s death. It may be necessary to liquidate assets in order to cover these tax payments.
· Step 9: Distributing the Estate
When all of the other steps have been completed, the executor can then begin to distribute the remaining assets to the beneficiaries named in the decedent’s will. In most cases, this requires the executor to receive permission from the court after submitting a complete accounting of everything they’ve done throughout the probate process. If any beneficiaries are minors, the executor may also have to set up a trust to hold the assets due to the fact that minors can’t own property.
What happens if an estate is “intestate”?
An estate is considered “intestate” if the decedent dies without leaving a valid will. This can happen if they didn’t draw up a will or if the court deems that the will presented is not valid. In this case, the estate must still go through probate but without a will making the decedent’s wishes known their assets will automatically pass to the closest relatives as determined by state law.
The probate process can seem complicated but in most cases, states will have forms that help to simplify matters. Having a certified probate lawyer in your corner can also help to ease your mind so that you can get through the entire process as smoothly and easily as possible.The Lawyer in Blue Jeans Group are leading probate attorneys in San Diego and can help you with any probate needs. Give us a call today or fill out our contact form and we’ll get back to you within 24 hours.