Although probate has a reputation for prolonging and complicating the process of administering a will, absent major conflicts, probate can be a smooth process that ensures that assets are transferred according to the decedent’s last wishes. Understanding the probate process can help surviving family members know what to expect when their loved one passes away.
Opening a Probate Case
An estate planning attorney often helps prepare a last will and testament, naming an executor and mapping out the testator’s wishes regarding the transfer of assets after death. When the person dies, the executor is responsible for opening the probate case in the county where the decedent lived before passing away. This process begins probate and the executor’s duties.
If the decedent did not have a will, a family member usually opens the probate case and the judge will appoint an administrator to settle the estate. If there is no will to designate how property is to be divided, the state laws of intestacy dictate who receives the decedent’s property. Otherwise, assets are typically distributed according to the will.
The executor or personal representative must locate the decedent’s assets, create an inventory of these items and take steps to safeguard the property, such as moving personal property or keeping it in storage. He or she may also have the property appraised to determine its value and secure insurance to protect it.
The executor or personal representative is responsible for identifying and notifying all known creditors of his or her appointment as executor and the limited time to submit a claim to the estate. The executor then pays off the valid claims from the estate assets.
The executor is responsible for filing the estate tax return. The executor determines if any estate tax or inheritance tax is due. All tax debt must be paid before any property can be distributed to the beneficiaries or heirs.
After the debts have been paid and the executor has filed all necessary paperwork with the court, the executor distributes the remainder of the estate to the will’s beneficiaries or the heirs at law based on the directions of the will or state law.