What Does the Probate Process Entail?

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The probate process requires the executor (also known as the “personal representative”) to take specific steps.

The loss of a loved one is difficult.

In the midst of grieving, families must also settle the estate of the deceased.

This process is simpler if there is a last will and testament in place.

Whether there was a last will or the individual died intestate (i.e., without a last will), the estate will be settled in the probate courts regarding any assets for which there is no surviving joint owner or beneficiary designated.

According to a recent SWAAY article titled “What is the Probate Process in Florida?,” the probate process will likely look similar from one state to the next.

What are the basic steps of the probate process?

The probate process can be quite involved.
The probate process guides the settlement of an estate.

Consult with an experienced probate attorney.

The family of the deceased and the executor likely will want to meet with an professional.

The meeting should include a review of relevant documentation.

Bring the last will, lists of debts, financial statements, real estate title deeds, and life insurance policies.

File the petition.

If you are the executor named in the last will, you will file last will with the probate court.

If there is no last will, an estate planning attorney can be asked to file a petition with the court to appoint an administrator.

When the executor (or administrator) has been approved by the court, the court will issue Letters of Administration.

This confirms the legal authority of the executor to act on behalf of the estate.

The executor with notify creditors and beneficiaries.

The executor will then pay taxes, funeral costs, and creditor claims, then begin coordinating asset distribution and closing the the probate estate.

Notifying beneficiaries and creditors.

How does an executor notify beneficiaries and creditors during the probate process?

If there is a last will, then notifying beneficiaries is straightforward.

The probate court will direct that legal notice is published in the local newspaper of record for such purposes.

In addition, known creditors will be given actual notice.

If there is no last will and testament, you will need to notify the surviving spouse, beneficiaries of the estate, and all parties with a right of inheritance.

Creditors will be paid from the estate.

Obtain letters of administration from the probate court.

These are issued as part of the probate process.

After the executor had possession of these letters, the executor can open an estate account at a bank.

Assets and statements can be liquidated and sold if necessary.

These funds are then held in the estate account until distribution.

Settle all expenses, taxes, and estate debts.

Debts must be paid before heirs can receive an inheritance.

The exception is on life insurance policies and retirement accounts.

These pass directly to heirs outside of the probate process, if they are the designated beneficairies.

After debts are paid, the executor must prepare a final income tax return for the estate.

Conduct an inventory of the estate.

The executor must keep a record of the estate assets and expenses.

These include the debts settled, the cost of assets, the executor fees, and other probate expenses.

Distribute the assets.

When the creditor claims have been paid, the court will direct the executor to transfer the assets to heirs according to directions in the last will.

If the decedent died intestate, distribution will be made according to the laws of the state.

Finalize the probate estate.

After every debt has been paid and all assets have been distributed, the estate must be formally closed by the executor.

To accomplish this, the executor must prepare a final distribution document and a closing affidavit stating all assets were adequately distributed to the heirs.

The probate process can be a good means of distributing assets from a simple estate.

For more complicated estates or for those who desire greater privacy, a fully-funded revocable living trust may be a better option.

Reference: SWAAY (Aug. 24, 2020) “What is the Probate Process in Florida?”

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