Probate is the process (supervised by the clerk of superior court or judicial proceeding) by which assets owned by a decedent (deceased person) at the time of the decedent’s death, which assets did not otherwise pass to the decedent’s beneficiaries through some non-judicial or informal process, are dealt with after the decedent’s passing. Whether a decedent’s assets must be probated has nothing to do with taxes or whether the decedent executed a Last Will & Testament; probate may be required whether the decedent died with a valid Last Will & Testament (called “testate”) or without a valid Last Will & Testament (called “intestate”). Generally, probate of a decedent’s estate serves two main purposes: (1) give the decedent’s creditors an opportunity to make their claims against the decedent’s estate/probate assets; and (2) change the title of the decedent’s assets to his or her devisees or heirs.
The probate process requires the Personal Representative (also known as “Executor,” “Executrix,” “Administrator” or “Administratrix”) to administer the decedent’s estate under court supervision, which imposes various duties and/or responsibilities upon the Personal Representative, some of which are as follows:
- Locate the most recent Last Will & Testament of decedent;
- Petition the court to probate the Last Will & Testament of decedent and thereby open an estate file for decedent’s estate;
- Identify assets in decedent’s estate and take control of the same, including (but not limited to) the following:
- Safe deposit box;
- Household and personal property (including any valuables);
- Bank checking accounts, savings accounts, and certificates of deposit, etc.
- Investment accounts;
- Business interests;
- Life insurance and annuity policies;
- Real estate (both within and outside the state residence of decedent); and
- Collect monies owed decedent by third parties (evidenced by loans or promissory notes, etc.);
- Arrange for appraisal of decedent’s assets, if necessary;
- Pay valid creditor claims against the estate and reject improper claims, if necessary;
- Pay state and federal taxes due, which also requires the filing of income tax returns for the decedent (and the decedent’s estate) and the filing of federal estate tax returns and state death and/or inheritance tax returns;
- File inventories of the estate assets with the court, providing detailed statements of all estate receipts and disbursements
- Pay attorney fees and/or personal representative fees, if applicable; and
- Distribute the remaining assets of the estate according to the decedent’s Last Will & Testament or state intestacy laws (if the decedent died intestate).
As the above duties of a Personal Representative suggest, the job of a Personal Representative can be rather difficult, especially for larger and more complicated estates which can last for two years or more. It is important that you consider your choice of Personal Representative carefully, whether you ultimately name a family member, friend, or corporate fiduciary. Moreover, due to the expense associated with probate, as well as the public and time-consuming nature of it (during which time it is not unusual for the assets of the estate to be frozen and inaccessible by heirs and/or devisees), many individuals decide they would prefer that their estate avoid probate so as to alleviate the responsibilities of surviving family members or friends who would otherwise be appointed as Personal Representative. With proper planning, Four Pillars Law Firm can assist you in ensuring that your assets may pass on to your beneficiaries outside of probate and court supervision, in a manner that is quick, inexpensive, and private. Moreover, depending upon the size of your estate, we may be able to assist your family in being able to keep more of the assets you worked so hard to accumulate over your lifetime.
Additionally, if you have been named as a Personal Representative for a decedent’s estate, it is important that you understand your fiduciary duties owed to the estate and ensure your compliance therewith. Four Pillars Law Firm has significant experience probating estates of decedents. Understanding the tremendous responsibility of being a Personal Representative, we can help you settle all the debts of the decedent’s estate and ensure that assets are distributed in accordance with any documentation (e.g. a Last Will & Testament) as well as the law. Our goal is to assist you in fulfilling your fiduciary obligations as the Personal Representative and to close out the estate to ensure that you are protected against any claims by an estate creditor or a malcontent family member or beneficiary. If you have been named the Personal Representative of a decedent’s estate, you should contact our office to make an appointment within two to three weeks of the decedent’s death; in the meantime, do not pay out, move, or re-title assets, regardless of what your family, good friends, and/or neighbors advise.
Now that you have discovered how we may be able to help you as Personal Representative of a decedent’s estate administration, please Contact Us with your particular inquiry and see if you qualify for a free initial consultation so that we may discuss your individual concerns and develop an estate plan that meets your needs.
If you would like to learn more about the services we offer, please visit our Trust Administration page to read about the administration of your trust planning documents upon your passing, or visit another one of our practice areas by making the appropriate selection at the top of the page.