Probing the Probate Process

10 Steps To a Complication-Free Process

A common estate planning goal is to avoid the probate process. But it’s an impossible goal, which isn’t necessarily a bad thing.

The probate process was structured to smoothly and fairly transfer assets to beneficiaries and creditors. Of course, factors such as the nature of assets, valuation problems, contested creditor claims and contests against the will can complicate the situation. But a general understanding of the process can help you realize that “probate” isn’t always a bad word.

Follow These 10 Steps

The probate process begins after a court determines that assets were owned in the sole name of the decedent. The probate process then:

1. Determines whether a will exists. The executor files the will with the probate court to protect its integrity and to allow inspection by interested parties. If a will doesn’t exist, state law will control property disposition.
2. Examines the immediate family’s needs. Most states provide for allowances to be made from the decedent’s estate to support the surviving spouse and any minor children during the term of administration.
3. Opens the probate estate. Most states require disclosure of the estate’s approximate value and of the names and addresses of interested parties. The court must approve the will, and challenges may be filed at that time.
4. Contacts interested persons. These people may include all beneficiaries named in the will, natural heirs and other interested persons, such as creditors. The type and length of notice required to establish a deadline for creditors to file their claims varies by state.
5. Names an executor to oversee the estate’s liquidation and distribution. The will usually designates the executor, subject to court approval, who manages the decedent’s assets during the term of administration.
6. Collects and inventories all assets. The inventory list helps ensure proper distribution. And remember that the decedent may have various assets in many locations.
7. Pays all valid claims in full. If a creditor doesn’t file its claim on time, the claim generally is barred. This allows the personal representative to know when the decedent’s assets may be distributed to the beneficiaries.
8. Files tax returns and pays any taxes. These taxes may include final income and estate taxes and, when required, estate fiduciary income taxes.
9. Files all final accounting. Most states require an accounting of the estate’s assets, receipts and disbursements to be distributed to interested parties.
10. Distributes residuary estate. Last, the remaining assets are distributed to the beneficiaries.

Nothing To Fear?

While it is often a goal to avoid probate court, te process isn't always as frustrating as you may think [but complications may arise]. Significant distinctions exist between states that can make the process more time consuming or costly. But it’s important to remember that many probates don’t entail complications. Our professionals would be happy to help you manage the somewhat complex -- but not necessarily scary -- probate process.