How to Probate an Estate

How to Probate an Estate


The decedent cannot be the owner of property, so it has to be legally transferred from their ownership into the ownership of a living beneficiary after they pass away. This is commonly achieved using the probate process.

What happens to the deceased debts? They are paid using the probate process also, since any individual with the power of attorney no longer can act on behalf of the decedent to manage their debts.

The probate process occurs under the monitoring of probate courts, and in place are specific regulations and laws that are required to be followed when a court is engaged. They can differ somewhat from each state, but some steps are normal and happen in a prearranged order.

How to Start

The first step in the estate resolution process is to establish if the decedent left a will. Unless they created a living trust rather than a will, the estate must usually still be probated even when they did not leave a will.

When you don’t locate a will among their important documents, inquire with attorneys they may have used to create one. You can also typically get access to their safe deposit box when they had one exclusively for the purpose of possibly locating their will. This is a rule that is going to vary by state, nevertheless. You might require special approval from the probate court judge to access the box.

When you aren’t able to locate their will and when the decedent didn’t have another estate plan like a trust, the estate is considered to be “intestate.” Each of the same steps still apply. They are just adjusted to accommodate the reality that the decedent didn’t make their dying wishes known.

Open the Estate With the Court

Getting the estate opened could be as easy as taking the will to the clerk of the probate court and having them file it. The person designated as executor in the will usually will take care of this duty.

The court probably going to schedule a short-lived hearing, officially designating them as the executor of the estate and providing them with a document commonly called “letters testamentary.” This documentation gives them legal authority to act on the estate’s behalf.

Any family member or friend can petition to the court to open an estate when there isn’t a will, but this doesn’t inevitably mean that they are going to be designated as executor, occasionally know as an “administrator” if the estate is intestate. The court is going to choose an administer in accordance with state law. Spouses that are still alive are typically first in line for the responsibility, followed by adult children, parents, brothers and sisters—possibly the decedent’s creditors in some states, even though they are typically at the end of the list. A creditor won’t be designated unless utterly no one else wants to or is willing to take on the task.

Catalog the Decedent’s Documents and Assets

The executor’s first official task following designation is to find and identify the assets of the decedent. This usually involves a thorough examination of all their personal documents and financial institution account statements. This should be documentation, web links, or indications as to any existence of investment and brokerage accounts, stocks and/or bonds certificates, life insurance policies, vehicle titles, general records, and deeds if there are any. Many assets are going to be more obvious, such as the house they were living in or the contents of a safe.

The executor needs take possession of all this paperwork, in addition to the deceased’s income tax returns for the previous 3 years. It is their responsibility to keep their assets safe and unscathed awaiting probate. They will give notice financial institutions that the owner has passed away in order for the accounts to be frozen and only they have access to them. In the case of that Picasso hanging on their living room wall, it’s not unusual for an executor to take physical possession of such physical assets so they simply can’t “disappear” or otherwise be harmed, specifically when they’re valuable.

Valuation of the Decedent’s Assets

The next estate settlement step is to establish date-of-death valuations for the decedent’s assets. Financial accounts are easily determined from statements. However, real estate, personal items, and non-probatable assets like retirement accounts or jointly-owned property require professional valuation.

If the deceased’s estate might be taxable, non-probatable assets also need valuation. Estates worth over $11.2 million face federal estate tax, while state limits vary.

Paying the Deceased’s Income Taxes and Estate Taxes

Next, in the estate settlement process is paying the income taxes and estate taxes that need to be paid. This comprises of arranging and filing the deceased’s last federal and their personal state income tax returns, arranging and filing any needed state estate income tax returns, and any needed federal estate income tax returns.

Paying the Deceased’s Last Bills and Estate Costs

The executor/administrator deals with the deceased’s bills and ongoing estate expenses, like legal fees, accounting, and household services. They identify valid bills and use estate funds for payment. State laws may require a newspaper notice for unknown creditors. If a debt is disputed, the executor can refuse payment, but the creditor can appeal to the court for a judge’s decision.

Allocate the Balance to the Estate Beneficiaries

Estate beneficiaries often ask, “When will I get my inheritance?” Sadly, distribution is the final estate settlement step. This step usually needs court approval. The executor provides a detailed account to the judge, detailing every financial transaction for the estate. If all is in order and creditors are paid, the judge issues an order. This permits the executor to close the estate and distribute assets to beneficiaries as per the will.

In cases without a will, the deceased’s property follows “intestate succession.” State law dictates the order, typically starting with the surviving spouse, then the children. Other family members inherit through intestate succession if no spouse or children survive the deceased.

Occasionally Probate Isn’t Necessary

Probate isn’t always necessary. The deceased might lack probate assets, owning everything in a trust or with a surviving beneficiary. Some states exempt smaller estates from the full probate process if they’re below a certain value.

Moshier Law Offers Estate Planning in Arizona

Our estate planning lawyer in Scottsdale can help with Wills, Family Trusts, Power of Attorney, Probate, Guardianship, and Conservatorship. Give us a call today for a free consultation.

Moshier Law services all of Phoenix and Scottsdale, Arizona. Jennifer and her team of professionals seek to resolve Family Law cases efficiently with your goals in mind.

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