How to Obtain a Discharge After Probate

By Heather Frances J.D.

In your will, you can nominate an executor, or representative, to manage your estate between your death and the distribution to your heirs. While it is important for you to make a smart decision about whom you nominate, his appointment will not last forever. At some point, his job is finished and he will be discharged from his position. Your executor must operate within your state’s laws, and state laws vary regarding when and how an executor is released from these duties.

In your will, you can nominate an executor, or representative, to manage your estate between your death and the distribution to your heirs. While it is important for you to make a smart decision about whom you nominate, his appointment will not last forever. At some point, his job is finished and he will be discharged from his position. Your executor must operate within your state’s laws, and state laws vary regarding when and how an executor is released from these duties.

Probate

Probate typically begins when the court appoints your executor and determines the validity of your will. Depending on the size of your estate and your state’s laws, the process may be heavily supervised or nearly unsupervised. Your executor’s role is to gather your estate’s assets, pay your debts and distribute any remaining assets to your beneficiaries in accordance with the terms of your will. You may wish to name someone who can keep track of paperwork and details since the process typically requires filing several batches of paperwork with the court. If you do not name an executor or do not make a valid will, the court will name an administrator to manage your estate.

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Executor Duties

Though state laws vary, your executor generally must notify beneficiaries and creditors, pay your debts, pay taxes due and distribute the assets left in your estate to your beneficiaries. During this process, your executor has a duty to deal honestly with your estate and represent its best interests rather than his own. After his duties are complete, he can be discharged from his role, but the process of obtaining a discharge varies between states. Typically, your executor must file a final accounting with the court and a petition to close the estate or other closing statement.

Formal Vs. Informal

States may have multiple versions of probate depending on the size of your estate. For example, Colorado has a shortened version of probate for estates that are under $50,000 in value and have no real estate. Larger or more complicated estates typically require a more formal process that is heavily supervised by the court. In more formal estates, your executor may need the court’s permission to distribute remaining assets to your beneficiaries before being discharged. If you do not want your executor to have to deal with the more formal process, you may want to incorporate trusts or other forms of non-probate transfers into your estate planning.

Discharge Procedures

The court may require your executor to attend a hearing before issuing a discharge, or he might be able to obtain his discharge by filing the estate’s closing paperwork. For example, California courts require your executor to file a final account, report and petition for final distribution, and he must request a hearing with the court. He must give notice of the hearing to interested persons, such as potential beneficiaries and heirs. At the hearing, the court will issue an order approving final distribution. Your beneficiaries can waive the requirement for your executor to file the final account, but they must sign a written waiver or acknowledgement.

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Define Probate Law

References

Related articles

Legal Process of Benefactors in a Will

When you create a will, you leave directions for your loved ones to follow when distributing your estate. Your benefactors, or beneficiaries, however, don’t receive their inheritances automatically when you pass away. Instead, your estate must go through your state’s probate processes before it can be distributed. Though specific procedures vary among the states, the basic process remains the same in most areas.

What Is a Last Will & Testament For?

Although you may prefer to contemplate more pleasant circumstances, planning for your death allows you to retain some control over your belongings. A last will and testament is a legal document outlining your final wishes. A licensed attorney can help you understand the laws in your state that regulate the process of creating and executing last wills and testaments.

Estate Administrator Duties

When a person dies, his estate will likely go through the probate process, whether or not he left a will. During probate, the estate will be collected, debts paid and remaining assets distributed to beneficiaries. The person assigned the duty of managing the estate through this process is called an administrator or executor. Since state statutes govern estate administration, the administrator must follow state law regarding procedures and time frames.

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