A Probate Checklist: How to Probate an Estate
By: Julie Garber
Elder Law Associates Newsletter dated July 18, 2018
The deceased can't own property, so it must be legally transferred from her ownership into that of a living beneficiary when she dies. This is most commonly accomplished through the probate process.
And what about the decedent's debts? They're paid through the probate process as well.
All this takes place under the supervision of a probate court, and there are certain rules and laws that must be followed whenever a court is involved. They can vary somewhat from state to state, but some steps are common and occur in a prescribed order.
01 Getting Started
The first step in the estate settlement process is to determine whether the deceased left a will. Unless she formed a living trust instead, the estate must typically still be probated even if she didn't leave a will.
If you don't find a will among her important papers, check with attorneys she might have used to have one drawn up. You can also usually gain access to her safe deposit box if she had one solely for the purpose of potentially locating her will. This is one of those rules that can vary by state, however. You might need special permission from the probate court judge to enter the box.
If you can't locate a will and if the deceased had no other estate plan such as a trust, the estate is said to be "intestate." All the same steps still apply. They're just tweaked a little to accommodate the fact that the deceased did not make her final wishes known.
02 Open the Estate With the Court
Opening the estate can be as simple as taking the will to the probate court clerk and filing it. The individual named as executor in the will typically takes care of this task.
The court will most likely schedule a brief hearing, officially appointing him as executor of the estate and giving him a document commonly known as "letters testamentary." This document gives him legal authority to act on behalf of the estate.
Any friend or family member can apply to the court to open an estate when there is no will, but this doesn't necessarily mean that she'll be appointed as executor, sometimes called an "administrator" when the estate is intestate. The court will choose an administer according to state law. Surviving spouses are usually first in line for the job, followed by adult children, parents, siblings—even the deceased's creditors in some states, although they're usually at the bottom of the list. A creditor would not be appointed unless absolutely no one else is available or willing to take on the job.
03 Inventory the Decedent's Documents and Assets
The executor's or administrator's first official job after appointment is to locate and identify the decedent's assets. This typically involves a thorough review of all his personal papers and bank account statements. There should be documents, links, or hints in there as to the existence of investment and brokerage accounts, stock and bond certificates, life insurance policies, corporate records, car and boat titles, and deeds, if any. Some assets will be more obvious, like the home he was living in or the artwork hanging on his walls.
The executor should take possession of all this paperwork, as well as the decedent's income tax returns for the last three years. It's her job to keep his assets safe and intact pending probate. She'll notify financial institutions that the owner has died so the accounts can be frozen and only she can access them. In the case of that Rembrandt hanging on his living room wall, it's not uncommon for an executor to take physical possession of such tangible assets so they can't "walk off" or otherwise come to harm, particularly if they're valuable.
04 Value the Decedent's Assets
The next step in the estate settlement process is to establish date-of death values for the decedent's assets.
The balances of financial accounts as of that date should be fairly obvious from statements and records, but assets such as real estate and personal effects, including jewelry, artwork, collectibles, and closely-held businesses, must often be professionally appraised.
If it's expected that decedent's estate will be taxable for federal or state estate tax purposes, the decedent's non-probate assets must also be valued. These are assets that don't require probate because they pass directly to a beneficiary due to some other operation or mechanism of law, such as a retirement account with a named beneficiary or real estate he decedent might have owned with someone else with joint rights of survivorship.
Most estates are not subject to estate taxes at the federal level—only those with values exceeding $11.2 million have to deal with this tax as of 2018. State estate tax thresholds are typically much less, however.
05 Pay the Decedent's Income Taxes and Estate Taxes
The next step in the estate settlement process is to pay any income taxes and estate taxes that might be due. This includes preparing and filing the ?decedent's final federal and state personal income tax returns, preparing and filing any required federal estate income tax returns, and any required state estate income tax returns.
06 Pay the Decedent's Final Bills and Estate Expenses
The executor or administrator must next take care of paying the decedent's final bills as well as the ongoing expenses of administering the estate. These expenses can include legal fees, accounting fees, utilities, insurance premiums, and mortgage payments.
He must figure out what bills the decedent owed at the time of his death and determine if they're legitimate. If so, he'll then pay them from estate funds. State laws typically require that he post a notice regarding the death in the newspaper so creditors he might not be aware of can make claims for the money they're owed. He can decline to pay a debt if he doesn't believe it's valid, but the creditor has a right to petition the court to try to get a judge to overturn the executor's decision.
07 Distribute the Balance to the Estate Beneficiaries
One of the first questions estate beneficiaries will usually ask the executor or administrator is, "When will I receive my inheritance?" Unfortunately, distribution of the estate's assets to the beneficiaries is the very ?last step in the estate settlement process.
It typically requires court approval. The executor will submit an accounting to the probate court judge, detailing all financial transactions she's made on behalf of the estate. Assuming everything is in order and all creditors who are entitled to payment have been paid, the judge will issue an order allowing her to close the estate and transfer the decedent's assets to his beneficiaries under the terms of his will.
If there is no will, the decedent's property will pass to his most immediate family members in a prescribed order known as "intestate succession." The exact order depends on individual state law but the surviving spouse is invariably the first in line, along with the decedent's children. Other family members typically only inherit by intestate succession if no spouse or children survive the deceased.
Sometimes Probate Isn't Necessary
Not every estate requires probate. It's always possible that the decedent owned no probate assets—all her property might have been held in trust or she owned everything with a surviving beneficiary so it passed directly to that person or persons. And most states have special provisions in place for very small estates, those that don't exceed a certain value. These estates don't usually have to go through this full-blown probate process.