An executor has certain responsibilities and requirements he must meet before settling, or closing, an estate. If he manages the estate improperly and distributes assets before settling with creditors and paying taxes, he could be held personally liable for monies owed. While the probate process usually takes six months to a year, it can take longer if the executor delays his duties or if the estate is complicated.
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Generally, probate is a court-supervised process and as such, an executor is not free to take as long as he wants to settle an estate. Executors are subject to certain deadlines throughout the probate process, but the exact timing of these deadlines varies from state to state. For example, Connecticut law requires an executor to file his first inventory with the court within two months of his appointment, but Maryland gives the executor three months. If an executor does not complete a task by the statutory deadline, the court may intervene or other interested parties may challenge the executor’s performance.
Before the probate process can begin, the named executor typically files a petition to admit the will to probate. She must also file a petition requesting her appointment. In some states, the named executor must publish notice of her request for appointment to give interested parties the chance to dispute it. A hearing is also held on the petition to admit the will, which cannot occur until beneficiaries and heirs receive notification of the petition. The time frame as to how long the appointment can take and how long before probate begins can vary according to state law, individual case and court workload. Further, states statutes regarding the admittance of a will for probate can vary greatly. For example, Connecticut requires admittance of the will within 30 days of the decedent's death, whereas Alabama has a five-year statute for probating a will.
Once the executor is appointed, he must begin gathering the estate’s assets and valuing those assets. This can be complicated if the executor is not familiar with the decedent’s assets, or it can also be fairly simple and quick if the decedent owned only a few assets or his assets are easily discoverable. Some assets may require appraisal, which can take a month or more, depending on the type of asset. Once the assets are identified and valued, the executor must file an initial inventory of those assets with the probate court. States typically also allow more filings to update the inventory as needed if assets are identified after the initial inventory is filed. As such, each update of the inventory adds time to the probate process.
Notice to Creditors
An executor is required to notify creditors of the decedent’s passing. Requirements for notification also vary among states. Some states require the executor to notify each creditor by mail, while other states simply require that the executor publish a notice to creditors in the local paper for a set amount of days. Further, some states require both, while some states simply require that a notice to creditors be posted at the courthouse and other public locations. Deadlines regarding how long a creditor has to file a claim also vary from state to state. Once a creditor files a claim, it is up to the executor to settle the claim.
The executor is responsible for filing the decedent's final tax returns and paying any taxes owed from the estate. The executor is also responsible for any estate taxes when due. Estate taxes are only applicable to very large estates -- in excess of $5 million. An executor typically cannot settle a large estate that owes taxes until he files an estate tax return and receives an estate tax closing letter from the IRS. The IRS estimates a wait of about four to six months after the executor files the estate tax return to receive the closing letter. State law may also require payment of state estate taxes prior to settling large estates as well.
References & Resources
- Connecticut Probate Courts: Guidelines for Administration of Decedents’ Estates
- Virginia Estate Law: Inventory & Accounts
- Maryland Register of Wills: Administering Estates in Maryland
- Internal Revenue Service: Frequently Asked Questions on Estate Taxes
- Bernalillo County: Ask the Probate Judge: How Long For Probate?
- Oregon State Bar: What is Probate?
- Elder Law and Estate Planning: You Are an Executor So Now What?
- Justia U.S. Law: 2005 North Carolina Code - General Statutes Article 14 - Notice to Creditors.
- Fortenberry Law: How to Probate a Will in Alabama
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