1. Find the Will.
The first thing to do is to locate the original of the will. It will nominate someone to serve as executor, and perhaps an alternate if the first is unavailable. If the nominee is deceased or otherwise unavailable, the will can still be admitted to probate on petition by any family member. If no will is found, the court will appoint someone as administrator of the estate. In such cases the statutory preference is for the surviving spouse, but any family member can seek to be appointed personal representative.
2. Determine if probate is necessary. The probate process is generally only concerned with assets owned by the deceased in their own name. Probate isn’t necessary for many common assets. No probate is necessary to:
- Pass real estate and other assets owned in joint survivorship to the surviving joint owner;
- Transfer bank accounts and securities registered in “payable on death” form to beneficiaries;
- Transfer funds in IRAs and retirement plans to named beneficiaries;
- Make claims for life insurance benefits by the named beneficiary; or
- Transfer assets held in trust to named beneficiaries.
3. Hire a lawyer. The probate court clerks are knowledgeable and helpful, but they are not attorneys and cannot give legal advice. You might be tempted to do this without the advice of counsel, but your biggest problem as a non-lawyer is that you don’t know what you don’t know. That can be costly in both time and money. Court costs and attorney’s fees are expenses of the estate, not the personal responsibility of the executor. It is common to hire the attorney who prepared the will to represent the estate but that is not required. You should, however, hire counsel who is familiar with probate practice and administration in your jurisdiction. The personal representative, i.e., executor or administrator, has an obligation to administer the estate according to law, and has a fiduciary responsibility to all of the beneficiaries. Legal counsel can help insure that the entire process goes smoothly and correctly. In addition, in smaller estates—under $15,000—it may be possible to dispense with formal probate administration. This still requires filing a pleading with the court, but it is fast and simple.
4. File the Probate Petition. Your attorney will prepare the appropriate documents for you to sign to have the will “proven” and admitted to probate, and to have you or another appointed executor or administrator. You will need to sign a personal bond and may need corporate surety, depending on various factors usually set forth in the will. You may or may not need to appear in court to be appointed. After appointment, you will be given documents from the clerk that are evidence of your appointment and can be used when dealing with banks and others while acting as personal representative.
5. Locate and manage assets. Your first job is to identify and gather assets. Locate and secure the deceased person’s assets and sensibly manage them during the probate process, which commonly takes about seven months. Depending on the contents of the will and the financial condition of the estate, this may involve deciding whether to sell real estate or securities owned by the deceased person. Carefully monitor mail for statements or other evidence of assets, accounts, or debts. Check for a safe deposit box. Assets located outside the jurisdiction may require probate in that jurisdiction, referred to as ancillary administration.
6. Handle day-to-day details. Handle day-to-day details, such as terminating leases and other outstanding contracts, and notifying banks and government agencies—for example, the Social Security Administration, the post office, Medicare, and the Department of Veterans Affairs—of the death. Continue reviewing all of the deceased’s mail carefully to identify debts, other assets like life insurance, CDs, etc., or other things otherwise unknown to you. Go thorough desks and papers to identify items of importance.
7. Open an estate bank account. Set up an estate bank account to hold money that is owed to the deceased person—for example, paychecks and stock dividends. You will need a federal Taxpayer Identification Number for the estate, usually gotten online by your counsel or the bank (but make sure you only get one!). Deposit all assets, refunds, etc., into this account, and write checks for all expenses from this account. By keeping a very good check register you will have much of the information needed to close the estate at the end of the probate process.
8. Pay expenses and taxes. Pay continuing expenses — for example, mortgage payments, utility bills, and homeowner’s insurance premiums. The executor must also file an income tax return for the year in which the person died and pay any required tax. In larger estates, a state and federal estate tax returns may also be required. You must also determine whether a state inheritance tax or a federal estate tax is due or a return is required. In addition to paying court costs and attorney fees, the executor or administrator is entitled to a fee, called a commission, for their services to the estate, to be paid from the assets of the estate.
9. Identify debts and creditors. Creditors have six months to file a claim for payment of any bills or other obligations you haven’t voluntarily paid. As personal representative, you decide whether or not a claim is valid. This is a statutory process and counsel can help if there are any questions about valid claims.
10. Distribute property. Supervise the distribution of property—such as cash, personal belongings, and real estate—to the people or organizations named in the will.
11. Close the estate. When debts and taxes have been paid and all the property distributed to the beneficiaries, you file pleadings with the probate court to formally close the estate. These can be formal—where all receipts and disbursements are disclosed—or informal where the beneficiaries agree to a limited report. When you receive a final order from the court closing the estate, your job is done. Congratulations!
We hope this simple outline is helpful. As always, when in doubt, seek the advice of competent counsel. We’d be glad to help.