When someone dies, their properties have to be transferred to living beneficiaries. This is done through the probate process. The probate court validates the will (if there is one), while the executor is responsible for disbursing the estate to the beneficiaries.
But is that all? What if the decedent owed debts before passing away? What about their funeral expenses and estate taxes? Of course, these must be settled. This and more are what forms the executors role, and these roles are accomplished in 7 steps, known as the 7 point probate checklist.
So if you have been named as an executor, this blog post serves to educate you on the steps you need to follow during probate.
Note: An executor only exists when there is a valid last will. In the absence of one, the court will appoint an estate administrator. Both administrator and executor have exactly the same roles, just different terminologies for different legal situations. They are collectively known as the personal representative of the decedent.
So without further ado, let’s move on to the 7 point probate checklist to follow for executors.
1. The preliminaries (finding the will)
The first step after the individual dies is to file the decedent’s will alongside their death certificate and take it to the probate court for the process to officially commence. If you do not know where they left the will, check with the family to know if the decedent left a will at all. If they have no idea and can’t find it in the decedent’s closet, check in with their attorney.
If after every search it is realized that the decedent left neither will nor trust, then the estate is declared “intestate”. Here, the court will decide who receives the assets since the decedent’s wishes are unknown. You may then proceed to apply as the estate administrator so that the court can appoint you.
The next steps apply whether or not there is a will. However, asset transfer will be altered in the absence of a will.
2. Filing the probate petition
Probate officially begins when you file the probate petition to the court. You do this by filing the will and death certificate alongside a written petition to commence probate. Once the court accepts it, the estate is declared “open”. You will then be given a document known as Letters Testamentary, authorizing you to settle the estate. If you were appointed as an estate administrator, then the document given is Letters of Administration.
3. Inventorying the decedent’s assets and documents
The next step is to take inventory of all that the decedent owned. This is its entirety is what is referred to as their estate. You have to locate each asset and identify how they’re owned. This involves getting a hold of all his documents, personal papers, bank account statements, and any document you can lay hands on. In there, you should be able to determine the existence of investments, life insurance, bonds, shares, and any property he owns. You should then notify the bank to freeze their accounts to prevent fraudulent transactions. It is your job to keep each asset physically and digitally safe during probate.
4. Valuating the estate and opening a checking account
You then have to estimate the total value of the estate. You may choose to call a financial expert to do the assessment to avoid errors. Then you have to open a checking account from which you are to pay expenses. Yes, all your expenses during probate must come from the estate and not your purse.
5. Filing tax returns and settling estate tax
Next, you have to file the tax return forms and pay any income and estate tax on the estate. You may have to consult a probate attorney to determine if the estate is subject to state or federal estate tax and how to go about settling them.
6. Settling creditors and funeral expenses
After settling tax, the next thing to settle is debts and final expenses. People will come claiming to be creditors of the deceased, and it’s your job to figure out what claim is legitimate. It’s advisable hiring an experienced probate attorney for professional guidance.
7. Distributing the assets
After all debts and financial obligations have been settled, you must then proceed to distributing the estate’s left-over to the beneficiaries. Before doing so, you need to get approval from the court by submitting a record of all the transactions you’ve made from the estate. If your accounting is accepted, you will be approved.
If there is a will, you have to follow the instructions in disbursing the estate. In the absence of one, you must follow state’s law of intestate succession.
Get help from a probate lawyer near you
Complications often arise during probate, such as will contests, estate litigation, and family disputes. All of these can make probate drag on for over a year. You do not want that.
Having a professional working with you helps to alleviate the complexities. To ensure your probate is seamless, get help from a probate lawyer near you.