Probate essentials: Everything an executor needs to know
Keys to the probate process
After the will is authenticated and you are named executor, your first steps will be to identify all debts and assets.
Creditors will have to be notified according to state law and will have a window to come forward.
Only once all debts are paid can you start to distribute any assets to the beneficiaries in the will.
The steps to probate are simple but the details are complex, so it is best to hire an experienced estate lawyer.
Navigating the days, weeks, and months following the passing of someone you love can be complicated, especially if they named you executor of their will, leaving you in charge of managing their estate and distributing it to the rest of the family and close circle.
The executor of an estate is in charge of overseeing probate, a court-supervised process during which the executor authenticates the person’s will and carries out its provisions. Probate involves six key steps that the executor must follow to comply with the law.
At a high level, probate involves locating your loved one’s assets and appraising them, paying off taxes and debts, and distributing the remainder of the estate to its beneficiaries. Each state follows a different protocol to determine what is required to probate an estate. Although you can perform your executor duties on your own, we recommend that you hire an estate attorney to help you, particularly if the estate will be going through the full probate process.
Step 1: Authenticating the will
Following your loved one’s death, anyone in possession of the will must file it with the probate court in the county where they had their primary residence. Typically the filer will also petition the court to open probate, which requires a death certificate. The local probate court will generally give you the forms necessary for the petition, making this process straightforward.
Once you have filed the will, a probate judge will confirm its validity. This may require a court hearing involving the witnesses who signed the will and/or all the named beneficiaries.
The court hearing also offers family members the opportunity to contest the version of the will presented and object to the named executor’s appointment. These testimonies are important for the judge to assess the will’s validity.
If your loved one did not leave behind a will, you should submit a petition to open probate with a death certificate and any accompanying forms. In this case, the court hearing may involve the heirs—the individuals who inherit your loved one’s assets by state law.
Step 2: Identifying the executor or administrator
In most cases, your loved one will name the executor of the estate in their will. If they did not leave a will, the next of kin, usually a surviving spouse or an adult child, is typically named administrator of the estate for the probate process.
Even if the will names a specific individual as the executor, this person is not obligated to serve. If you were named executor but do not want to do the job, the court will appoint somebody else.
Once an executor has been appointed, they will receive letters from the court legally stating that they can act on behalf of the estate and oversee any required transactions.
In some cases, you may need to post an executor bond at this point to officially take on the estate executor's responsibilities.
Once an executor has been appointed, they will receive letters from the court legally stating that they can act on behalf of the estate.
Step 3: Giving notice
One of the first things you should do as the executor is locate any documents relating to debts your loved one owed. If this has not yet been done, contact one of the three credit bureaus to get a full credit report, freeze their credit, and alert all credit card companies your loved one had an account with.
In most cases, the court will require you to publish a notice of your loved one’s death in a local newspaper to alert any creditors you could not locate. Creditors have a time frame in which they must submit a claim for outstanding debts; this varies by state law.
As the executor, you can reject a claim if you believe it is not valid. The probate judge will then determine the estate’s responsibility.
Determining what debts your loved one owed will give you some insight into what to look out for in the next step, especially the assets you may need to sell to pay them.
Step 4: Locating and valuing assets
Next you will have to locate all the assets your loved one left behind. This is often the most labor-intensive task, as not all assets are hidden in plain sight. Enlisting the help of close friends and relatives will help expedite this process and help you do it in accordance with the law.
Be sure to look at your loved one’s tax returns, insurance policies, or other documents. There may be a paper trail of particular assets’ existence. This will also enable you to gather all important documentation, including bank statements and investor accounts, as well as any stocks or bonds your loved one may have owned.
If your loved one left behind physical property, such as real estate, the estate is responsible for the payment of any immediate bills, including but not limited to mortgage payments, property taxes, and insurance. Failure to pay these could lead to foreclosure, and you may lose the property.
In addition to real estate, you will need to gather all personal possessions and place them in a safe location. You may choose to rent out a storage unit or leave all assets in your loved one’s residence.
Once you have gathered all known assets, you will need to appraise them and provide the court with an itemized list of assets included in the estate to determine the estate's overall value.
Step 5: Paying off debts and taxes
As the executor, you will use estate assets to pay off any debts the estate has. The more rigorous you are about completing this step, the less you will need to deal with claims from creditors down the line.
If the estate has more debts than assets, it is considered insolvent, and debts must be paid in a particular priority order, as determined by the court and by state law. Because creditors who are lower in the priority may not get paid at all, it is very important to follow the rules carefully. If you pay the wrong bill early on in the process, you can be held personally liable to pay back the priority creditor who lost out.
You will also have to file your loved one’s final income tax returns, as well as income taxes for any money earned by the estate itself, such as rent or interest. Taxes are generally considered a high-priority debt, and so must be paid early for an insolvent estate.
If you pay the wrong bill early on in the process, you can be held personally liable to pay back the creditor who lost out.
If the estate is very large, you may also have to pay federal or state estate taxes.
Importantly, you cannot distribute any assets to beneficiaries before paying off all debts. Again, doing so could cause you to be held personally liable.
Step 6: Wrapping it up and distributing the rest
Distributing the rest of the estate to beneficiaries is the final step in the probate process before the estate can be officially closed. You must petition the court for permission to distribute assets.
The court will require a full accounting of everything you did during the estate valuation process, each asset you appraised, and each debt you paid off. The more comprehensive the report, the faster the court will approve your request. Some states require that you justify each expense, while others allow beneficiaries to opt out of this detail-oriented step.
Once you have received the green light, you can distribute the remaining assets according to the instructions in the will. If there are trusts mandated in the will for minors, you must set these up. For other beneficiaries, you will need to transfer money and file transfers of deed or title with state or county officials.
If any of the beneficiaries do not believe the process was conducted correctly or fairly, they can take this opportunity to bring a complaint to the court. But if you’ve kept open lines of communication and meticulous records, there should be no issues. The court will require a final accounting of the distribution of assets, after which it will close out the estate and the probate process.
Probate might seem like a daunting undertaking. But being named executor is also a measure of the level of trust and respect that your loved one had for you. And faithfully executing their estate is part of how you will honor them, and their wishes, in turn. It is a lot of responsibility, though, and it is highly recommended that you obtain the services of an estate attorney to do most of the heavy lifting ●
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