When someone passes away with assets in their name alone that need to be distributed, their estate goes through the probate process. Probate is the court-supervised process through which a person’s will is accepted, and the executor of the estate documents all of the decedent’s assets and debts, pays creditors, and gives beneficiaries or heirs the assets they are entitled to based on the will or a state’s intestate laws.
Beginning the probate process
Probate begins when a person begins the legal process after a loved one has passed away. Typically, the person who is named as the executor of the estate in the will begins the probate process, though not always. The petition for probate should be filed in the county where the decedent lived at the time they passed away. The county will have a form petition the family member or other individual can use. Along with the petition, the individual should include the death certificate and the original will.
The individual who files the probate application is responsible for notifying beneficiaries, heirs, and creditors. “All distributees and named beneficiaries under the Will are given some form of notice,” says attorney Anthony Enea of Enea, Scanlan & Sirignano, LLP. “A distributee is someone who would inherit under the laws of intestacy if there was no Last Will in existence.”
How notice must be provided depends on the county’s court rules. In most cases, the executor will mail notice to the distributes, beneficiaries, and creditors. Some counties require publishing a notice of probate in the local newspapers.
Once notice is properly given to the relevant parties, the individual handling the probate process will file proof of notice with the probate court.
Executors of a family or friend’s estate who are worried about navigating the probate process can work with an experienced local probate attorney. A probate lawyer can handle the steps of providing notice and proving to the court that proper notice was given.
Validating or contesting the will
Next, the will’s validity must be established by the court. This is usually simple, however, if anyone believes the will is invalid for some reason, then a beneficiary or heir may contest the will in court.
In some states, a will can be “self-proving.” A self-proving will includes an affidavit signed by witnesses in front of a notary stating that the will was valid at the time it was signed. If it is not a self-proving will, then statements from one or multiple witnesses can be used to establish the will is valid.
Once the will is validated, then the court names the executor of the state, who may also be called the personal representative or administrator of the estate. The court must grant this individual the power to do things for the estate, like gather information from banks and utility companies.
The executor’s role during probate
“The role of the executor is to marshal all of the decedent’s assets and pay all legitimate and proper bills,” Enea says. It is the executor’s duty to discern every asset and debt that is part of the decedent’s estate, including real estate, personal property, bank accounts, investment accounts, insurance policies, remaining bills, bank loans, and credit card debt. They must be able to show the court an accurate accounting of the estate.
The executor may need to take several steps to manage the estate, including getting certain assets appraised to determine their current market value and opening a bank account for the estate.
Then, the executor must:
- Prepare the decedent’s final state and federal taxes.
- Approve or deny creditors’ claims, and if required by the court, provide a list of creditors’ claims to the court.
- Pay approved creditors’ claims.
“The estate assets are used to pay the outstanding bills of the decedent,” Enea says. “If the decedent was in debt, the assets in their estate can be used to pay all legitimate and appropriate bills. Secured creditors would have priority over the estate’s assets.”
Finally, the executor needs to obtain court approval to distribute the remaining assets to the beneficiaries. After this step is complete, the executor can return to court and ask it to close the estate.
The probate process differs by state and county
The probate process differs slightly for every state, and even for counties within a state. How probate is handled in San Diego County, California will be different than in Cook County, Illinois. For example, some counties require that executors obtain a bond to protect the state. Also, some states allow for a simplified probate process for small estates. If your loved one has passed and you are now tasked with distributing their assets, contact a qualified attorney specializing in trusts and estates to assist you.