What Happens After an Estate Has Been Probated?

By Cindy Hill

Whether a person dies with our without a will, in most cases, his estate must go through the probate process. Although state probate laws vary, the probate process is fairly uniform throughout the United States. It is generally a court-supervised process for gathering the assets of the deceased, paying his creditors and taxes and then distributing his remaining assets to his beneficiaries if there is a will -- or to his heirs, according to the state's laws of intestate succession, if there is no will. During the probate process, real property owned by the deceased is retitled to his beneficiaries or heirs. To open probate and begin the process, an interested party, typically a beneficiary or heir, must file a petition with the state court that handles probate.

Personal Representative

Once a beneficiary or heir petitions a probate court to open an estate, the court assesses the validity of a will, assuming there is one. The court then appoints a personal representative, also called an executor, if one is named in the will, or an estate administrator if there is no will or no executor is named, to oversee the administration of the estate. The personal representative is sometimes required by state law -- or by instruction of the will -- to post a bond. A bond is like an insurance policy, as the bonding company will reimburse beneficiaries or heirs for assets stolen during the administration of the estate. The executor must notify all beneficiaries and heirs once probate is opened. The personal representative must also notify all creditors in the manner required by state law. Creditors then have a set amount of time, determined by state law, to file a claim against the estate.

Inventory

The personal representative or administrator must prepare an inventory of the assets of the estate, assess the value of those assets, and submit an inventory to the probate court. The personal representative can hire appraisers, accountants and lawyers to assist with the administration of the estate. The executor must also provide the court with the list of beneficiaries and heirs, as well as other parties of interest such as creditors. The amount of time the executor has to submit this inventory to the court varies according to state law. An executor or administrator has an obligation to the beneficiaries and heirs of the estate to preserve all the assets of the estate including paying taxes on real property and handling all investments properly until distribution occurs.

Protect your loved ones. Start My Estate Plan

Debts and Taxes

The estate's personal representative must settle with creditors, pay any debts of the estate, file the last income tax return of the deceased, and in cases of large very large estates, pay any required federal and state estate taxes. The personal representative's required final accounting to the probate court will include a statement of debts and taxes paid.

Challenges

Several types of challenges can occur during probate that can cause delays or litigation expenses. Beneficiaries may contest the will on the grounds that it was written under fraud or undue pressure, or was not written in accordance with state requirements. If the will is successfully challenged, the court could accept a prior will or decide to proceed as if there was no will. If the estate executor becomes incapable of continuing the complex work of settling the estate, she may resign from her post as executor -- and the court must appoint a new executor or administrator. If the beneficiaries or heirs can prove that the personal representative or administrator has stolen from, or not properly managed, the estate, they can petition the court for removal of the personal representative. If this occurs, the court will appoint a replacement. These challenges are costly and time-consuming, but do occur.

Distribution and Accounting

The personal representative must ultimately ensure that the estate assets are distributed to the rightful recipients. Once all the estate debts and taxes are paid, before distributing the remaining assets to beneficiaries and heirs, the executor must prepare a final accounting. State laws typically require that in cases of court-supervised probate, the court approve the final accounting before the final distribution of the assets can occur. In some states, such as New York, the beneficiaries can agree to approve the accounting informally, or without a separate accounting proceeding in court.

Protect your loved ones. Start My Estate Plan
Estate Administrator Duties
 

References

Related articles

Probate Laws for Dying Without a Will in Minnesota

Even when people don’t write a will that dictates how they want their assets distributed when they die, most do leave some property that requires legal transfer to their heirs. Probate is necessary to effect the transfers. This is easiest when there is a will, but the process is similar in Minnesota when a decedent dies intestate, or without a will. The major difference is that without a will, the state distributes the decedent's property according to law and under the terms of its Uniform Probate Code.

How Long Does an Executor of a Will Have to Settle an Estate?

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.

How to Settle an Estate After a Death Without a Lawyer

When it's time, a probate court will handle your estate. State law and court rules govern the process, so they can vary a little by jurisdiction. Having a legal representative might be helpful for an executor, but it's not necessary. If you feel strongly that your executor should have legal guidance, you can include this requirement in your will.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

What Does Probating a Will Mean?

The will probate process may seem complex on the surface. A closer examination, however, reveals that the process is ...

Who Enforces the Execution of a Will?

In drafting your will, you may appoint a person to serve as your executor, also known as a personal representative. ...

What Happens When an Executor of a Will Doesn't Carry Out What the Will Asks For?

A last will and testament represents the final wishes of a deceased person, and laws are in place to ensure that the ...

How to Settle a Personal Estate

When a person creates a will, she often includes language in the will identifying a person who will serve as the ...

Browse by category
Ready to Begin? GET STARTED