Probate an Estate
You’re required to probate an estate after someone passes away.
It gives someone– typically the surviving spouse or other close family member – the power to gather the deceased’s assets, pay debts and taxes, and eventually transfer assets to those designated in their will (don’t worry, we’ll talk about if someone died without a will, too).
Probate an Estate
To probate an estate usually takes about a year to complete, unless there is (1) a court fight over the will, (2) unusual assets, or (3) creditors’ claims that complicate matters.
Is It Necessary To Probate An Estate?
Usually probate is only required if the deceased person owned assets in his or her name alone. Other assets are usually transferred to their new owners without probate.
These are common assets that do not need to go through probate process:
- Real estate owned in joint tenancy; this will automatically pass to the survivor
- Life insurance benefits that are payable to a named beneficiary
- Assets that have a named beneficiary outside of the will (ex: retirement accounts or payable-on-death bank accounts)
- Assets held in a revocable living trust.
Skipping Probate When There’s No Will
In specific circumstances, any heir can ask the local probate court for a statement that no probate is necessary. This will be granted if:
- There is no will
- All heirs agree on how the assets should be divided amongst themselves and
- There are no creditors that object to not having the estate probated.
- This is usually pretty rare, especially when it comes to all heirs agreeing on who gets what.
This can be an issue even when there is a will in place!
The Personal Representative’s Role
This person is also known as the “executor of the will.” If the deceased person named you to serve as executor/personal representative/PR, it will be up to you to step up and take charge of settling the estate.
So, if you must probate the estate, it’s your job to go to the court and request to be formally appointed as personal representative of the estate. And if there is no will, or the person named in the will isn’t available or willing to serve, the probate court will appoint an “administrator.”
The “administrator” is basically the same thing as an executor and is also called the personal representative.
Usually the surviving spouse has first priority to be appointed as administrator … As long as they weren’t in the middle of divorce proceedings at the time of death.
To begin, the personal representative takes an oath promising to act in the best interests of the estate; then the court will issue a document called “Letters of Testamentary” or “Letters of Administration.” These letters give the executor/administrator the power and responsibility to:
- pay valid debts and taxes for the estate,
- collect and inventory the deceased person’s assets, and keep them safe
- distribute the remaining property as the will (or if there’s no will, state law) directs.
Estate Assets
Further, the personal rep. must keep careful records of how estate assets are handled and distributed because you might need to submit receipts, bills and bank statements to the court. Sometimes they require certain reports about the estate, such as a detailed inventory of estate assets that show their estimated market value.
Such reports must be sent to all heirs and beneficiaries of the deceased, too.
The personal rep. also has authority over any assets that go through probate, which can be almost anything!
Debts and Taxes
Within 60 days of starting to serve as personal representative, you must publish a notice of the probate proceeding in a local newspaper. This lets creditors know that they have 3 months after publication ends to come forward to present a formal claim to the estate. However, most creditors don’t make formal claims, the deceased will just keep getting bills sent in the mail.
Now, if there isn’t enough money in the estate to cover all the debts, the personal rep. must follow the hierarchy of who gets paid first from the estate:
- The family– Surviving spouse and any children under 18 are entitled to a year’s support.
- Funeral expenses
- Costs of probate (lawyer fees, filing fees, etc)
- Taxes
The list goes on, but you’ll only need to consult it if the estate can’t cover all the bills. And if you find yourself in that situation, you’ll want to consult an estate lawyer before paying anyone.
Back to the personal rep.’s responsibilities…
You’ll also have to file final state and federal income tax returns for the deceased. These returns are usually due by April of the year after the year of death.
(A federal estate tax return will be required only if the taxable estate is very large—for deaths in 2018, more than $11.18 million. Only about 1,800 estates are expected to have to pay federal estate tax under the current tax structure.)
How To Distribute Property and Close the Estate
The personal rep. can distribute estate assets to inheritors only after debts and taxes are paid.
When all debts are paid, required tax returns are filed, and the estate assets are distributed, the personal rep. files a Petition for Discharge with the court, asking to be formally relieved of her duties.
If the court determines that the rep. has performed all the duties required, the discharge will be granted. This closes the estate and releases the personal rep. from any liability!
Protect Your Family
We see people pass away without wills all the time.
Their inheritance gets split up by the government.
Their spouses don’t get what they deserve.
Their kids don’t get fair splits of the inheritance.
It’s usually a mess and never turns out how the family wants it to.
Fill out the form below if you don’t want the government to be in control of your inheritance.
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Disclaimer
This website is for informational purposes only. It is not legal advice. Consult an attorney if you are seeking legal advice.