In most cases, unless an estate is very small, the probate process is court-supervised. The deceased’s debts have to be paid and his property has to be distributed to whoever he named in his will. Wills usually appoint an executor, the person who takes care of the details of the process according to court rules and deadlines.
Create an affordable will with LegalZoom
To open probate, the deceased’s original will is filed with the probate court in the county where she lived, along with a certified copy of the death certificate and a petition to open probate. The court verifies that the will is authentic and the executor takes an oath of office. The court then gives her documentation confirming her position, called “letters testamentary” in most states. Some states require that an executor also post bond, or an insurance policy against any wrongdoing, if the will doesn’t specifically waive this requirement.
An executor’s first duty is usually to collect all the assets of the estate and, when possible, secure them in a safe location. A list must be made of everything the deceased owned, whether or not it she mentioned it in her will. Some assets do not require probate, such as life insurance policies with named beneficiaries or real estate passing directly to a co-owner through rights of survivorship. Generally, these non-probate assets do not have to be included in the inventory, but check with an attorney for the law in your particular state. The executor estimates asset values and gets appraisals where necessary. The inventory is then filed with the court.
Anyone the creditor owed money to must have an opportunity to make a claim against the estate. Taxes must also be paid, both individually for the deceased’s last year of life and possibly for the estate, depending on its value. Most states require that the executor directly notify creditors with loans secured by collateral, advising them that the estate is in probate. Additionally, a newspaper notice is also generally required to alert creditors that the executor might not know about. Creditors have a set period of time to make their claims, and the executor can then either pay the claims or reject them. If he rejects a claim, the creditor has a right to file a lawsuit with the court to ask a judge to overturn the executor's decision. Mortgages and other secured loans must be kept current.
Distribution and Final Accounting
The executor can distribute the balance of the deceased’s assets to beneficiaries when all debts have been paid or resolved and all taxes have been filed and paid. She also transfers deeds and titles to property as necessary. Sometimes this process requires the permission of the court. After this is accomplished, most states require that the executor file a final accounting with the court, including receipts for everything paid on behalf of the estate. Some states require that the executor appear for a final court hearing to be officially discharged from duty. The estate is then closed.