How to Probate an Estate
Probating an estate can be a difficult and time consuming process involving taxes, fee payments, beneficiary disputes and tricky asset transfers. This book explores the process from the moment the deceased passes away right through to the distribution of assets. Items such as death certificates, autopsies, funeral planning and asset management are discussed at length. It will show you how to:
- Initiate and close probate with ease.
- Learn how to locate and manage estate assets.
- Deal with creditors’ claims, taxes, and trusts.
- Avoid the common mistakes made by many executors.
- And much more….
Probate has come to mean not just proving the validity of a Last Will and Testament but the entire administrative process surrounding the collecting of assets, payment of debts and the passing of a deceased person’s legal title to property to his or her beneficiaries.
Probating an estate can be a demanding and time consuming process involving complicated taxes, fee payments, disputes amongst beneficiaries and tricky asset transfers. It is therefore important that you are properly prepared for the task before embarking on it – especially if you are a first time executor. Any omission or error on your part could result in financial losses to the estate, substantial delays in the completion of probate and the transfer of assets to beneficiaries, and, in certain circumstances, personal liability for you as executor or personal representative.
Executors have a general duty to administer the deceased’s estate and to distribute the estate to the beneficiaries named under the deceased’s Last Will and Testament or, in the absence of a Last Will, to the deceased’s heirs in accordance with state intestacy laws. In carrying out your duties as executor, you will be obliged to act promptly and in the best interests of both the estate and the deceased’s beneficiaries or, as the case may be, heirs. How to Probate an Estate will ensure you are aware of what your duties and responsibilities are and how to carry out those duties.
How to Probate an Estate will, amongst other things, guide you on:
- what to do immediately following the death of the will maker;
- what to do during the first month of your appointment;
- how to open and close probate proceedings,
- how locate and take possession of the deceased’s property (the ‘estate’);
- how to prepare an inventory of all the assets and property owned by the deceased at the time of death and value those assets;
- how to manage, protect and preserve the estate;
- how to notify creditors of the deceased’s death, deal with creditors’ claims and decide which creditors’ claims should be allowed and which should be disallowed;
- how to discharge taxes; and
- how to distribute assets to the beneficiaries.
How to Probate an Estate will guide you step by step through the probate process. For more information on the contents of this book, please see the tab entitled “Table of Contents”.
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Table of Contents
Chapter 1 - Overview of Probate and the Executor Role
What Is Probate and How Is it Commenced?
Letters of Authority
Why Are Letters of Authority Necessary?
Are Letters of Authority Always Needed?
Persons Entitled to Apply for Letters of Authority
Restrictions on Who Can Be an Executor
Getting Appointed & What to Do Next
How Long Does Probate Take?
How Much Will Probate Cost?
Do You Need a Lawyer?
Chapter 2 - Duties and Responsibilities of Executors
Responsibilities of an Executor
General Duties of an Executor
Fiduciary Duties of an Executor
Powers of an Executor
Protections for the Executor from Liability
Payment of Compensation to Executors
Should You Accept Your Appointment as Executor?
What to Expect When Appointed
Resigning After Accepting the Appointment
Declining to Act as Executor
Chapter 3 - The Executor’s Duties - What to Do Immediately After Death
What to Do If Death Occurs at Home
Organize Anatomic Gifts
Obtain Copies of the Death Certificate
Review Letter of Instruction
Locate the Will and Other Important Papers
Arrange Funeral and/or Memorial Service
Chapter 4 - Making Sense of the Will and What to Do if There isn’t One
Determining Whether a Will Is Valid
Age of Majority
Format of a Will
Signing of a Will
Witnessing a Will
Notarizing a Will
Reading of the Will
Notifying Beneficiaries and Others
Appointment of an Administrator
Distribution of Assets on Intestacy
Chapter 5 - The Executor’s Duties: Taking Stock
Estimate Cash Needed for Immediate Future
Reducing Expenses During those First Few Days
Providing for Minor Children
Initial Inspection and Protection of Property
Chapter 6 - What an Executor Should Do in the First Month
Set Up a Filing System
Obtain a Tax Identification Number
Open a Bank Account in the Name of the Estate
Sort Through the Deceased’s Personal Belongings
Claim Unpaid Salary, Insurance and Other Benefits
Managing the Estate
Send Death Notices to the Utilities Companies and Financial Institutions
Cancel Unnecessary Estate Expenses
Dealing With Depreciating Assets
Securing Assets Managing Personal Property
Managing Real Estate
Management of Property
Managing Cash Accounts and Investments
Managing a Business
Managing Debts of the Estate
Dealing With Taxes
Keep Copies of All Documents
Chapter 7 - Property that Doesn’t go Through Probate
When Is Probate Necessary?
Payable on Death or Transfer on Death Accounts
Transfer on Death Securities
Life Insurance Proceeds
Joint Ownership of Property
Revocable Living Trust
Probate Free Transfers of Assets
Chapter 8 - How to Initiate the Probate Process
What Are the Main Steps in a Probate?
Who Can File the Petition?
Where to File a Petition for Probate
How Long Will Probate Take?
Is a Lawyer Required to Assist With Probate?
Types of Probate
Small Estate Administration
Formal or Supervised Probate
Initiating Supervised Probate
Notifying Interested Parties of the Hearing
Proving a Will and Dealing With Will Contests
Letters of Authority
The Requirements of a Surety Bond
Collecting and Inventorying the Estate’s Assets
Chapter 9 - Creditor Claims
Dealing with Creditors
Identification and Notification of Creditors
Time Limitations on Submission of Claims
Evaluation of Claims
Payment of Claims in Solvent Estates
Priority of Payments in Insolvent Estates
What Assets Should Not Be Used to Pay Debts?
Chapter 10 - Estate Tax
Responsibilities for Payment of Tax
Estate and Inheritance Taxes
Chapter 11 - Distributing Assets and Closing the Estate
Closing the Estate and Distributing the Assets
What is an Accounting?
The Requirement for an Accounting
Waiving the Requirement for an Accounting
Formulating a Plan for the Distribution of the Estate Assets
Petitioning the Court to Approve the Plan of Distribution
Giving Notice of the Hearing
Distributing the Estate Assets
Transfer of Real Estate
Transfer of Cars, Boats and Other Vehicles
Transfer of Cash Accounts
Transfer of United States Savings Bonds
Transfer of Broker Accounts
Transfer of Publicly Quoted Stocks and Bonds
Transfer of Other Property
Transfer of Joint Tenancy, Community and Other Survivorship Property
Distributing Property to Children
Obtaining and Filing Receipts
Closing the Estate
What If the Estate Isn’t Ready to Be Closed?
Chapter 12 - The Settling of Trusts
What Is a Trust?
What Exactly Are Living Trusts?
Parties to a Living Trust
The Successor Trustee
What Must the Successor Trustee Do When the Grantor Dies?
Obtain Certified Copies of the Death Certificate
Obtain a Tax Identification Number for the Trust
Collection and Management of Trust Assets
Preparing and Filing Tax Returns
State Taxes and Pick-Up Taxes
Transferring Property to Beneficiaries
Administering a Child’s Trust
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