The Sequence of Probating a Will

by Art Smithers
Probate court supervises distribution of an estate's assets.

Probate court supervises distribution of an estate's assets.

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Probate is a court proceeding wherein a judge oversees the distribution of assets in a decedent's estate. The process involves establishing the validity of the will, evaluating the assets, and identifying the decedent's creditors. Typically, an uncontested probate can take as little as six months to complete. However, if there are questions as to the validity of the will or the proper valuation of assets, such a case can take years to resolve. In any event, when the process is complete, the court will receive proof that all assets have been accounted for, all debts and taxes paid, and all heirs are in receipt of their respective inheritances. Knowing how the process is conducted can help you to understand what to expect.

Proving the Will

The first step in any probate is filing and validating the will. Only the original will can be probated; copies are not acceptable and, in most cases, cannot be validated. A self-proving will simplifies the task of validation greatly, as the court will accept it as valid without any additional evidence. A will is self-proving if it contains a clause affirming that it contains the wishes of the testator and was signed freely and voluntarily. The document must also be signed by two witnesses before a notary. If the will is not self-proving, the court will need to take testimony before it can accept the will as authentic and valid.

Appointing an Executor and Marshaling the Assets

Once the will is proved, the person identified in the will as the executor, called a personal representative in some states, must file a request with the court to be appointed. The court will typically issue an order granting the request if there is no objection. The court will then issue letters testamentary, which give the executor authority to take control of the estate's assets. The executor's first job will be to prepare an inventory of assets along with a statement as to the value of each asset. In many cases, the executor may choose to hire an independent expert to assist with valuation. Especially with larger estates, failure to use an expert may subject the executor to a possible challenge for malfeasance, particularly if there is a later claim that an asset was sold for less than its actual worth. Valuation of non-cash assets may also be necessary where a specific asset is to be divided among several beneficiaries. Typical estate assets will include personal property, real estate, annuities, insurance proceeds and bank accounts.

Identifying Creditors

The executor will next send a notice of probate to all known creditors requesting they submit their claims for consideration. Each claim must be carefully examined to ascertain its validity. This is done by considering whatever documentary proof the creditor may produce to establish the money he is owed was legitimately incurred and is, in fact, due him. The executor must reject claims which lack sufficient proof of validity. The rejected creditor may challenge the executor's assessment through a court hearing; however, unless the creditor can prove his entitlement, the executor's judgment will likely be accepted by the probate court. The executor is only responsible for paying valid claims; those accepted for payment will be placed on a list of estate debt.

Calculating Taxes Owed

The next step is the calculation of estate taxes. Some states, such as Florida, do not have estate taxes. In states that do impose such a tax, the executor determines the amount due to the state, which is typically calculated based on a percentage of the gross value of the estate. On the federal side, estates that have a total value in excess of a set limit are subject to federal estate tax. In addition to estate tax, the executor must calculate what income tax is owed. Any income earned during the last year of the decedent's life will be subject to taxation and the proper form must be filed with the IRS. In short, it is the executor's task to determine what taxes are due and prepare the proper tax forms for filing.

Settling the Estate

The executor will then petition the court for approval of a proposed settlement of the estate. In most cases, distribution of estate assets may not proceed until the court issues an order approving the proposed plan of disbursement. On receipt of the court's approval, the executor may then begin actual distribution of the estate by paying the required taxes, then the creditors and finally the heirs. Many states, however, allow for expedited proceedings if the gross value of the estate is relatively small. For example, Vermont permits simplified proceedings for estates valued at less than $10,000. In expedited proceedings, the executor is given greater latitude in resolving debt and disbursing the proceeds of the estate without prior authorization from the court; however, a final accounting must still be filed showing how the estate was distributed. Regardless of the size of the estate, the same responsibilities apply and the executor must, in all cases, ensure he deals fairly with both creditors and heirs.