If you’ve been named an executor in a deceased person’s will, they’ve entrusted you above anyone else to ensure their final wishes are fulfilled and their assets are distributed to their heirs.
Settling a deceased person’s estate requires more than simply reading the will and dividing the assets. There’s so much to do when a loved one passes away. First and foremost, their estate must go through the probate process, which is time-consuming, and typically involves several court appearances and a lot of paperwork.
If you have questions about where to start, this article will give you all the necessary answers and guide you through the process.
What is Probate?
In layperson’s terms, probate is the legal process whereby a judicial court reviews the property and wealth of a deceased person and determines heirs and beneficiaries. This process also includes paying the deceased’s debts or liabilities and distributing the remaining assets to the inheritors. While the concept is straightforward, completing and filing the necessary documents to initiate the process can be challenging.
Maybe you’ve never stepped inside a courtroom before and have no idea what being an executor is until you become one. Navigating legal systems and legal jargon are always difficult for people; negotiating the hefty probate services fee is even more difficult. While being an executor feels like an honor, and it is, it’s also a big responsibility not to be taken lightly.
So, your best bet is to hire a probate lawyer to help you navigate the entire process. You can easily find low cost probate lawyers at Trust & Will. Their dedicated probate expert will work with you directly to provide legal advice based on your circumstances, create a distribution plan, do all the paperwork, and submit it in court on your behalf.
What is the Role of the Probate Court?
Broadly, the role of the probate court is to:
- Oversee the execution of the will as per the deceased person’s instructions;
- Ensure all debts are paid and assets are distributed to the beneficiaries as detailed in the will; and
- Appoint conservators or guardians to manage the financial and personal affairs of a minor or an incapacitated or incompetent older adult.
In addition, the court interprets vague and unclear clauses in a will and answers any questions that may arise due to ambiguity. In any case, the court acts in a supervisory role.
The Probate Process: A Step-By-Step Guide
- File the Petition
The first step in the probate process is to file a petition of administration with the county’s circuit court where the deceased lived at the time of death. Your petition will include a probate form, a copy of the death certificate, and the will.
The court will review the will and verify its validity by checking the document’s date and signatures of the deceased person and witnesses. If all the documents are in order, the court will issue a letter of administration granting the petition. This process may take up to a month.
The court will also name a representative to fulfill the deceased’s wishes in this letter. The court will appoint someone if the will does not mention an executor.
- Take Inventory of Assets and Debts
Once the court has approved an executor, their first duty is to take inventory of all the assets owned by the deceased and determine their value. This could include properties like real estate, vehicles, clothing, books, pets, jewelry, family heirloom, vintage art collection, financial assets like bank and brokerage accounts, investments, etc.
You’ll also need to create a list of any unpaid debts. With each debt, highlight the amount owed and the interest rate accrued over time.
- Notify All Creditors
While putting together a list of debts and assets, you must do your due diligence to identify all potential creditors (anyone the deceased owes money to) and notify them that the estate has been submitted to probate.
- Pay Debts and Estate Taxes
The next step in the probate process is to pay off all debts and liabilities, including taxes due under the estate, before distributing any assets to the beneficiaries.
Once all creditors’ claims have been paid, the executor must file personal or business tax returns and pay the amount owed. Getting the returns approved can take a bit of time, but you don’t want to proceed before the returns have been filed and paid for two reasons.
Firstly, an executor who does not pay estate taxes can be held personally liable for estate debts under federal statutory tax law. Secondly, if the executor distributes the assets before paying taxes, the International Revenue Service (IRS), responsible for collecting U.S. federal taxes, will recover taxes from the assets transferred. Either way, an executor’s failure to pay taxes can have severe repercussions in the long run.
- Distribute Assets to Beneficiaries
Once all debts are cleared, you may distribute the remaining assets to heirs and beneficiaries per the deceased’s instructions or according to the state’s intestacy laws if there’s no will.
- File the Accounting and Final Petition
The executor will now file a final accounting statement with the probate court. This document will include details on the valuation of each asset, outstanding debts and taxes paid, all estate costs and expenses, and the breakdown of the distribution of assets.
Once the court has approved the final accounting, the final yet, crucial step in the probate process is to file a petition requesting the court to acknowledge that the executor has performed their obligations as required and close the estate for any further claims.
There’s a six-month window for any concerned parties to object to the proceedings of a probate court. They can sue the executor for making an illegal or unfair distribution during the probate process. Sometimes, a party will bring to notice the discovery of more assets after the probate has been closed. In this case, a petition must be submitted for these new assets to be transferred according to the will.
Final Word
Whether an estate’s probate process wraps up in a few months or stretches for a year or longer, it all depends on how big or small the estate is, how well-detailed a will is, and what the court calendar is like.
If someone among your loved ones has named you an executor in their will, you can make things easier for yourself by seeking legal guidance from experienced probate attorneys.
