What is Probate?

Probate is simply the process of the Court validating the Last Will and Testament of a deceased person, referred to as a "decedent" and having the executor appointed. Some of the duties of the executor are paying the decedent's final bills and estate taxes and/or inheritance taxes (if any), and then distributing what's left of the decedent's assets to his or her heirs.

 

6 Basic steps of Probate outlined:

 

1. Filing the Will and petition at the probate court in order to be appointed executor or personal representative. In the absence of a Will, we will petition the court on behalf of heirs to be appointed "administrator" of the estate. 

 

2. Marshaling or collecting the assets.

This means that you have to find out everything the deceased owned. You need to file a list, known as an "inventory," with the probate court. It's generally best to consolidate all the estate funds to the extent possible. Bills and bequests should be paid from a single checking account, either one you establish or even better, one that we set up as your attorney, so that we and you can keep track of all expenditures.

 

3. Taxes, taxes, taxes. If a state or federal estate tax return is needed it must be filed within nine months of the date of death. If you miss this deadline and the estate is taxable, severe penalties and interest may apply. If you do not have all the information available in time, we can file for an extension and pay your best estimate of the tax due.

 

4. Filing tax returns. A final income tax return for the decedent must be filed and, if the estate holds any assets and earns interest or dividends, an income tax return for the estate as well. If the estate does earn income during the administration process, it will have to obtain its own tax identification number in order to keep track of such earnings. Our probate attorneys are well versed in the latest probate tax issues.

 

5. Distributing property to the heirs and legatees. Generally, executors do not pay out all of the estate assets until the period runs out for creditors to make claims, which can be as long as a year after the date of death. But once the executor understands the estate and the likely claims, he or she can distribute most of the assets, retaining a reserve for unanticipated claims and the costs of closing out the estate.

 

6. Filing a final account. The executor must file an account with the probate court listing any income to the estate since the date of death and all expenses and estate distributions. Once the court approves this final account, the executor can distribute whatever is left in the closing reserve, and finish his or her work. We have the experience to make every step of the probate process less burdensome for our clients so they can arrive at the final accountings with a sense of ease.