Determine Whether the Case Will Go to Probate
When probate becomes needed depends frequently on the size of the estate and if there is no existing Will. If assets that are assigned to beneficiaries make up most of the estate, you may not need probate. Some states allow streamlined probate proceedings.
No probate is needed if:
- All real estate and assets are jointly owned.
- All bank accounts are in “payable on death” format with named beneficiaries.
- You can transfer funds retirement plans to named beneficiaries.
- You can transfer real property to surviving spouse.
- You can transfer assets held in trusts to named beneficiaries.
Decide Whether to Hire a Lawyer
If the estate has many different types of real estate, significant tax liabilities, or the potential for disputes among inheritors, hiring a lawyer may be a good choice. In most cases, executors are able to handle their duties without a lawyer, especially if the executor is the main beneficiary and doesn’t expect any complications.
You can hire a lawyer for two reasons:
- You’d like the attorney to guide you and answer questions, but still let you do all the work. In that case, it will be helpful for the lawyer to do any research you need and to review documents as you complete them.
- You’d like the lawyer to do absolutely everything required. The lawyer will be paid, either by charging a flat rate fee at an hourly rate, out of the estate proceeds.
You May Need Additional Help
To get help, if you decide not to hire an estate attorney, you can:
- Ask probate court clerks basic questions about court procedures, but they cannot give you any legal advice.
- Consult court staff lawyers, if available, to look over all the probate documents. They may notice errors and allow you to fix them and resubmit. They may even tell you how to fix them.
- Refer to books written for laymen about settling estates. Find a good one that assumes you know nothing about estates, and guides you step-by-step through the entire process.
File the Will and Notify Beneficiaries
If there is a Will, you must file a copy with the local court.
- File the Will — Ask about probate fees. You should ask the court to list you as the responsible person on the documents.
- Update the Beneficiaries — Provide updates at this time and at regular intervals and milestones. Beneficiaries need copies of the notice of the probate filing.
- Update the Excluded Relatives — If there are close relatives who are not named in the Will, but would have been beneficiaries if there had NOT been a valid will, it is a good idea to send them a notice, too. Be tactful and considerate.
- Obtain Copies of Death Certificates — Insurance companies and financial institutions ask for original copies of death certificates to transfer funds and close accounts.
- Locate Assets — Locate, identify, make an inventory, and provide security for the decedent’s assets. You are responsible for them now until the estate closes, which may take close to a year. Depending on the Will, the testator’s finances, and the overall condition of the estate, you may be responsible for deciding to sell off some or all of the assets, including real estate or stocks purchased and owned by the testator.
- Handle Daily Tasks — You are responsible for details, such as terminating club memberships. Notify banks and government agencies of the death. Ensure that services like landscaping and snow removal continue. Have the post office forward mail to your address. Keep invoices, bills, and receipts organized.
- Establish an Estate Bank Account — Set up an estate bank checking account to hold money like rent and paychecks. Use it to pay bills like utilities and property taxes. After the final distributions, it will be closed.
- Pay Expenses and Taxes — Pay bills and recurring expenses like mortgage payments and utilities.
- Oversee Income — Make certain that tenants pay their rent on time and business partners/affiliates continue sharing profits and revenues, and any professional clients keep up with structured payment agreements.
- Pay Debts and Notify Creditors — Prioritize debts in order of importance if there are cash flow issues. Pay any debts that the estate is legally required to pay. Obtain documentation to verify that the debt is legitimate or you may be held responsible for disbursing funds irresponsibly.
- Notify Creditors of the Probate Proceedings — Send notices to creditors, who then have a certain amount of time, usually up to six months, to make a claim for payment of any debts or other obligations you haven’t already paid. As executor, it is your responsibility to research claims and verify whether they are valid or not. Document your communications with creditors.
- Distribute Property — Oversee and document the distribution of property, such as final disbursement checks, personal belongings, and real estate, to the people or organizations named in the Will. Lower value items, checks, or items that are sent by registered mail or professional couriers, won’t necessarily need a signature proving receipt. Ask the beneficiary to sign a receipt stating that they have received valuable items like jewelry, silver, artwork, and antiques. Distributing items that have legal regulations must be done with caution. These types of items might include firearms, other weapons, certain types of vehicles, and wine collections.
- Close the Estate — When all obligations have been fulfilled, including final tax filings, and all the property distributed to the beneficiaries, ask the probate court to formally close the estate. Then send out a final accounting statement and notification to the beneficiaries.
This may seem like a lot of work, but don’t let it overwhelm you. You can get help with some tasks. For example, instead of selling the smaller assets one by one, just hire an estate auctioneer. Remember, you have several months to complete it all.
Updated: September 20, 2014