Probate is a court-supervised legal proceeding in which a deceased person's property is collected, his debts settled, and the assets of the estate transferred to his beneficiaries or heirs.
Initiation of the Probate Process
Filing the Will
The executor named in a decedent's will files a Petition of Probate and Appointment of Executor with the probate court, along with the will and death certificate. The county in which the testator lived has jurisdiction over the case.
Lack of Will or Intestacy
If there is no will, the probate court will appoint an administrator to carry out executor duties. The court often appoints a surviving spouse or adult child as the administrator. If a dispute regarding the administrator appointment arises, the court will appoint a neutral third party.
Validation of the Will
After the court validates the will through general inspection, the court admits the will to probate. The court issues an order granting the personal representative the authority to settle the estate. The personal representative uses a certified court document, known as Letters of Administration or Letters Testamentary, to prove this authority to settle the decedent's estate with financial institutions and others.
An executor and administrator have the same duties and rights and are generally referred to as the personal representative.
Personal Representative's Duties and Authority
The personal representative has the right to administer probate estate assets. Assets such as insurance policies and bank accounts with named beneficiaries pass outside of the estate, and the personal representative has no authority over their disposition.
Three Basic Steps
Collect, Inventory and Appraise Probate Assets
The personal representative's main duty is to collect and inventory the estate's assets. Assets can consist of insurance or retirement funds payable to the estate, loans, bank and brokerage accounts, real estate, outstanding paychecks, and the like. The personal representative files the inventory with the court. Appraisals of property are sometimes conducted and also filed with the court.
Pay Estate Expenses, Taxes, and Creditors
Whether or not a will exists, state law dictates that a surviving spouse and any minor children receive a percentage of a decedent's estate. Then, the personal representative pays the estate's expenses and debts from the remainder. Generally, the debts are paid in the following order: estate administration expenses, funeral expenses, taxes and debts, and all other claims.
Formally Transfer Estate Property in Accordance with Will or State Intestate Law
After the personal representative finalizes payment of the estate's expenses, claims, and debts, the remainder is transferred to the beneficiaries or heirs. If a decedent has no will, the property is distributed according to state intestacy law. The personal representative then distributes cash, transfers property title, and discloses investment statements.
Real Estate Waiting Period
A waiting period, typically six months, prevents the immediate transfer of real property. This is to allow creditors and other claimants a full opportunity to present their claims and be paid.
As a last duty, the personal representative files a Final Accounting with the court outlining his administration of the estate. The court approves the final settlement and closes the estate.
Probate is the legal process of settling a decedent's estate and transferring property to his heirs. A personal representative inventories the estate's assets, pays the estate's debts, and distributes any remaining the assets to heirs. Upon conclusion of his duties, the personal representative obtains a court final settlement and the estate is closed.
Questions & Answers: Wills and Estates