Probate is when a person, often a family member, is assigned by the court to gather and distribute a deceased person's assets. The process may include the distribution of assets to:
- Inheritors
- Creditors
Probate law isn't cut and dry, but if your state follows the Uniform Probate Code (UPC), the process has been outlined to help you get through the process as quickly as possible. The good news is that most states have adopted at least some portion of the UPC.
The first step to putting an end to the probate process is to ask the court to be named executor. If you're not the executor, you'll need to follow a rather standard protocol before trying to determine the court's rules about the documents you must obtain and file. You may also find that the deceased has no estate, and this is common.
Getting started requires you to follow these steps:
- 1.File a request for probate. This request, formally a "petition," must be done in the county that the deceased person resided in prior to death. You'll need to also furnish two documents: death certificate and an original will (where applicable).
- 2.Notices must be mailed to creditors. You will be required to publish the probate notice in a local newspaper.
- 3.Mail notices as required by the court.
- 4.File proof of proper notice procedures with the court.
At this point, the court may require that you post a bond. When posting a bond, this will protect the estate from losses caused by the administrator (you). The size of the bond will depend on the size of the estate.
If a will exists, you'll need to follow additional procedures to ensure that you're following the court's requirements. A will dictates what the deceased wanted for his or her estate, and you'll need to:
- Provide the will to the court
- Provide a witness to the will
The self-proving affidavit, present when the will was signed, may need to be produced.
After this step, you'll need to file any additional documents with the court as outlined above. Every court will have their own requirements here, so you'll want to consult with a probate lawyer that can outline every item required by the court.
Once the documents are filed, you'll need to move on to the actual administration of the estate. This requires you to:
- Contact the IRS for an employer identification number for the estate
- Notify the health department of the person's death
- Open a bank account for the estate
- Prepare and file asset inventory and appraisal
- Prepare income tax returns
- Notify creditors and satisfy debs
Your state may require you to also: file a list of all claims against the estate, file a federal estate tax return and file a state estate tax return. There are deadlines imposed on all claims, so you must move quickly to satisfy all deadlines.
The final step in the process is closing the estate.
Closing the estate puts an end to the responsibilities of the administrator. You'll be able to close an estate when the above requirements have been met and you've met the following final requirements as an administrator:
- Send a notice to all involved parties of the final hearing. Parties include heirs and beneficiaries.
- File proof of notifying all required parties.
- Ask the court for permission to distribute the estate's assets.
- Transfer assets and get receipts for proof of transfer.
- File receipts with the court and ask to be relieved of your duties.
A theoretically simple process, probate can be done entirely without a hearing if inheritors agree on asset division and there are no contests against the proceedings. States and counties can have their own probate rules.