Most people have little experience dealing with what happens after a loved one dies, and yet they're appointed as a personal representative or executor to settle the estate. This guide can help if you find yourself in this position, providing a general overview of the six steps required to probate an estate.
The first step in probating an estate is to locate all of the decedent's estate planning documents and other important papers, even before being appointed to serve as the personal representative or executor.
The decedent's estate planning documents might include a last will and testament as well as and funeral, cremation, burial, or memorial instructions. They might include a revocable living trust. The original documents should be stored in a safe place until they can be given to the estate attorney.
The decedent's important papers will include information about their assets, including:
- Bank and brokerage statements
- Stock and bond certificates
- Life insurance policies
- Corporate records
- Car and boat titles
- Deeds to real estate
This inventory will also include information about the decedent's debts, such as utility bills, credit card bills, mortgages, personal loans, medical bills, and the funeral bill.
A list should be made of what the decedent owned and owed. Also list how each asset is titled—in the decedent's individual name, as a tenant in common, in joint names, or in trust.
Note the values of assets or debts that have statements. This information should be listed on the statements, along with the date of the statements. The decedent's prior three years of income tax returns should be set aside as well.
The next step is to meet with an estate lawyer to open the estate with the probate court after the decedent's important documents have been sorted through.
Open the Probate Estate
When the estate lawyer has received enough information to draft the court documents required to open the probate estate, they will notify the person named to serve as the personal representative or executor in the decedent's last will and also the beneficiaries named in the will.
While these documents will vary from state to state, or even from county to county within the same state, they will generally include the following:
- Petition for probate administration
- Oath and acceptance of personal representative/executor
- Appointment of resident agent
- Joinders, waivers, and consents
- Petition to waive bond
- Order admitting will to probate
- Order appointing personal representative/executor
- Order waiving bond
- Letters of administration/letters testamentary
Value the Decedent's Assets
Once the probate estate has been opened with the probate court, the next step in probating the estate is to establish the date-of-death values for all of the decedent's assets. This step is important, because most states require that an inventory of the decedent's probate assets, along with their date-of-death values, be filed with the probate court within 30 to 90 days of the date when the probate estate was opened with the court.
All financial institutions where the decedent's assets are located must be contacted to obtain the date-of-death values. Assets like real estate, personal effects (including jewelry, artwork, and collectibles), and closely held businesses will have to be appraised professionally.
The probate court will only require a date-of-death value for the decedent's probate assets to be listed on the estate inventory. If the decedent's estate is taxable—on the federal or state level—then the date-of-death values will also need to be established for the decedent's non-probate assets. These assets will include those owned as:
- Tenants by the entirety
- Joint tenants with right of survivorship
- Payable-on-death accounts
- Transfer-on-death accounts
- Life insurance
- Retirement accounts, including IRAs and 401(k)s
Pay the Decedent's Final Bills and Estate Expenses
When the date-of-death values have been determined for the decedent's assets, the next step in probating the estate is to pay the decedent's final bills and ongoing expenses of administering the estate. That is also the time when the executor will need to evaluate whether any of the decedent's assets, such as real estate or a business, should be sold in order to raise cash to pay expenses, debts, and taxes.
It is the executor's job to figure out what bills the decedent owed at the time of death. They are responsible to determine whether the bills are legitimate, then pay them if they are.
The executor will also be responsible for paying the ongoing expenses of administering the estate, including legal fees, accounting fees, utility bills, insurance premiums, and mortgage payments.
Once the personal representative or executor has paid the final bills and has the estate's expenses under control, the next step in probating the estate is to pay any income taxes and death taxes that might be due.
The executor will have to prepare and file the decedent's final federal and state income tax returns and timely pay any taxes that may be due. The final federal income tax return—IRS Form 1040—will be due on April 15 of the year after the decedent's year of death.
The executor must also prepare and file all required federal estate income tax returns—IRS Form 1041—as well as any required state estate income tax returns, if the estate earns income during the course of administration.
The executor will be responsible for preparing and filing the federal estate tax return—IRS Form 706—or a state estate tax or inheritance return, and paying the tax bills if the decedent's state is taxable for federal or state estate tax purposes.
Some estates might be required to file a federal estate tax return even though no estate tax will be due. The value threshold of the estates that require these filings will vary by state. Some states do not tax the estate, but they might tax beneficiaries.
The final step in settling the estate is to make distributions of what's left to its beneficiaries after any income tax and estate tax issues have been resolved.
Distribute and Terminate
Usually, the first question that the estate's beneficiaries will ask the executor is "When will I get my inheritance check?" Unfortunately for the beneficiaries, making distributions of the assets to the beneficiaries is the very last step in settling the estate.
The personal representative or executor must be certain that every single expense of administering the estate and all taxes have been paid before making any distributions, or that enough assets have been set aside to pay the final bills and taxes. Otherwise, the executor will have to pay these expenses out of their own pocket if they make distributions to the estate's beneficiaries, but expenses come up later.
The executor should work closely with the estate lawyer and accountant to plan for setting enough assets aside to pay the ongoing estate expenses if administration of the estate is expected to take more than a year. Distributions to the estate's beneficiaries might be made in multiple stages.
Frequently Asked Questions (FAQs)
How long does probate usually take?
There's no set timeline that's universal across all counties and states. It depends on numerous factors, including the size and complexity of the estate and how busy the court is. California warns that probate can take nine months to a year and a half or longer.
Is probate required if the decedent didn't leave a will?
Probate is required if the decedent owned any assets that have no other way of transferring to a living beneficiary. Assets held in trust and those with beneficiary designations, such as retirement accounts, don't require probate, because they transfer directly through other legal channels. The decedent's heirs at law would be required to review and sign any documents required to open a probate estate if there isn't a last will directing the disposition of other assets. They would pass according to the state's rules for "intestate succession," an order of closest kin that are in line to inherit by law. Spouses and children usually inherit first.
What happens if someone objects to the will?
Objecting to the will for any reason is the basis for a will contest and often results in a separate trial. Only individuals with "standing" (those who have a financial interest in the estate) can contest a will. Many states allow only a limited number of days for them to do so, and they must have a supportable reason.