Probate is the legal process of appointing a representative to administer an individual’s estate. If the decedent died with a Will, the Will usually nominates an individual to serve as Executor. That individual then takes the original Will, a death certificate, and a Petition for Grant of Letters to the Register of Wills in the County the decedent resided in. At that time, the Will is examined to confirm its valid and the person nominated as Executor is sworn in. If an individual died without a Will, the process is almost the same except the person sworn in to administer the estate is called an Administrator. Usually, the individuals that have standing to serve as Administrator are the surviving spouse and/or those entitled to take under the intestate laws: such as adult children, parents, siblings, aunts and uncles.
Probate is required if the decedent owned assets individually, including personal property and business interests. Probate assets are those assets that pass pursuant to the decedent’s Will or by the laws of intestacy. If all assets are titled jointly with another living person or if all assets pass pursuant to operation of law, probate may not be required. Examples of probate assets include: Bank accounts and security accounts in the decedent’s name, real estate titled solely in decedent’s name or as tenants in common, tangible personal property, and un-cashed checks payable to the decedent.
After probate, the personal representative begins the process of Estate Administration.
Estate Administration involves the management and distribution of the gross estate. The Executor or Administration can be held liable for any mismanagement of the estate.
Administration includes the following tasks:
- Notify the beneficiaries and potential heirs.
- Notify banks, credit card companies and government agencies of the decedent’s death.
- Find all of the decedent’s assets, estimate the value and file an inventory of assets with the court.
- Close individual checking or savings accounts and open an estate account.
- Manage property until it is sold or distributed.
- Pay the estate’s debts and taxes.
- Pay funeral expenses.
- Distribute assets.
- File final lifetime tax returns, inheritance tax returns, possible federal estate tax returns and fiduciary income tax returns.
- Formal (through the Court) or informal (through Family Settlement Agreement) settlement of the Estate.
Sometimes administration includes representing the estate in court in a will contest or other legal proceeding and filing a final accounting with the court. If you're looking for a probate lawyer to help adminster an estate give us a call.