Commonly Asked Questions by Someone Headed Into Probate
What Is The Probate Process? What Can Someone Expect If They are Heading into a Probate?
The process of the probate has some various steps. The first step is to make an application with the court for the court to appoint the executor or personal representative. That person will normally be the person who has been named in the will to serve as the executor. However, if a person died without a will, state statute will generally provide for a priority of family members to serve as executors first, starting with the surviving spouse or if there is no surviving spouse, then children.
The second part of the process is that if the decedent left a will, then making an application to have the will admitted to probate by the court. Admitting the will to probate is the finding by the court that the will is valid. The next step is to file an inventory with the court. All executors are required to file an inventory of all of the decedent’s assets ranging from the real estate to the bank and securities accounts with account numbers and amounts, automobiles, tangible personal property and anything else that the decedent may own that has to go through probate.
The next step is taking care of the decedent’s final affairs in terms of getting tax returns filed, paying the decedent’s final deaths if claims by creditors are made. If those claims are in dispute by the executor, then having a hearing at the court to determine what claims have to be paid. Once all of the obligations of the estate and the decedent have been taken care of and paid, the final step is for the executor to file with the court for an order to close the estate and distribute the assets to the beneficiaries.
How Long Do Probate Processes Typically Take?
Usually at a minimum, it is six months. If the estate is large enough that a federal estate tax return has to be filed, generally you can figure a minimum of eighteen months. The six months deadline is generally set by state’s statute which says that creditors have six months to file claims and the estate cannot be closed by then.
If a federal estate tax return has to be filed, normally the executor does not want a close out and distribute the estate until there has been what is referred to as a closing letter from the IRS accepting the return as filed. That is because if the executor closes out the estate before the closing letter is received and the IRS determines that additional money is due since there is no money left in the estate, the executor becomes personally liable. Normally, it will take at least eighteen months after a decedent dies to receive that IRS clearance.
If You Do End Up In Probate, Who Are All The Main Players? Who Is Going To Be Involved In The Entire Process?
There are three main players:
The first player is the executor or the personal representative of the estate. That is the person who is charged with distributing the estate to the beneficiaries.
The beneficiaries are the second of the three main players because they are the ones who will receive all of the decedent’s property upon the conclusion of the probate.
The third player is the main player, who is the attorney, because it is the attorney that is going to be advising the executor on all of the steps they need to properly complete in order to execute the probate and distribute the estate.
How Can An Attorney Help In Probate To Avoid Or Minimize Delays To Ensure That The Process Goes Smooth?
A good attorney will be diligent in helping the executor pursue all of these steps that the executor needs to take in an as timely a manner as possible. When delays do occur that are unnecessary, it normally happens because the executor is just sitting on something that could be done for a long period of time. In that case, the best thing that the attorney can do is to keep identifying what the next step is, when it can be established and to help the executor get it done in a timely fashion.
Attorney Steve Spewak Answers Commonly Asked Questions By Someone Headed Into Probate. Call the office of Estate Plan Strategies LLC for a FREE Initial Consultation at (314) 542-2210 and get the information and legal answers you’re seeking.
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