Probate can be a contentious process. Establishing the estate representative is one thing, but administering the estate to the satisfaction of all parties involved can be difficult. Below we answer the initial questions asked when a loved one has passed and the task of executing their will is at hand.
What is Probate Anyway?
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.
What If They Died Without a Will?
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.
Who Usually Becomes the Administrator of the Will?
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.
Is Probate Required?
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 (the person who has died) 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.
What Are Probate Assets?
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.
What is 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.
What is Ancillary Probate?
Ancillary probate is a second probate proceeding necessary when a decedent has property to transfer in a state other than the one handling their estate. We take a deep dive into what ancillary probate is, when it is needed and how to avoid it here.
If you're looking for a probate lawyer to help administer an estate plan, High Swartz attorneys are keenly aware of the fine details that can go into this trying and sometimes contentious affair. Please call us at 1-833-LAW-1914 or visit our Estate Planning page for individual lawyers and email addresses.