Probate is the legal process by which the estate of a deceased person is settled. The word probate is a Latin term which means to “prove the will”. Nowadays, probate also includes those estates where the deceased person dies without having a will. With or without a will, probate administration generally involves identifying the assets of the decedent, paying the decedent’s debts and taxes, then distributing the remaining assets to the devisees or heirs. If there is a will, the person appointed personal representative is responsible for the probate administration. If the decedent did not have a will, often a family member will be appointed as personal representative by the probate court.
Although each probate administration is different, generally the informal (i.e. without court hearings) probate process is as follows:
1. An application for Informal Probate and Appointment of Personal Representative is filed with the probate court along with the Last Will and Testament and a $150 filing fee. If there is no will, then ordinarily an heir of the decedent will seek appointment as personal representative.
2. Publish a Notice to Creditors in the local newspaper to notify potential creditors that they have four months to make a claim against the estate.
3. Gather all of the assets of the decedent and prepare an Inventory to be filed with the probate court along with an Inventory fee.
4. Pay all expenses, debts and valid claims of the decedent’s estate.
5. File state and federal tax returns for the decedent. Depending of the income and dividends earned during the estate administration, an income tax return may need to be filed for the estate.
6. Distribute the estate assets to the devisees if there is a will or to the decedent’s heirs if there is not a will. In most cases, a personal representative will not distribute assets until the four month period has ended for creditor claims.
7. Prepare a final account. The personal representative must prepare and distribute to the interested parties a final accounting listing all the income earned, assets sold, and all estate expenses and distributions.
8. Close the estate. Once the probate administration is complete, the personal representative can file with the probate court a Sworn Statement to Close Unsupervised Administration and send a copy to the interested parties. Generally, this cannot be done until at least 5 months have passed from the opening of the probate estate. Assuming none of the interested parties object to the estate closing, after thirty days the probate court will issue a certificate of completion.
A will can help insure that your estate is administered by the person of your choice and distributed to those persons you prefer. You should consult an experienced elder law attorney to design a will for your particular needs and desires and for assistance in probating a deceased person’s estate.