Pub. Date: Feb 2010
Country: United States
Probate has come to mean not just proving the validity of a Last Will and Testament but the entire administrative process involving the collecting of assets, payment of debts and the passing of a deceased person’s legal title to property to his or her beneficiaries.
Probating an estate can be a demanding and time consuming process involving complicated taxes, fee payments, disputes amongst beneficiaries and tricky asset transfers. It is therefore important that you are properly prepared for the task before embarking on it – especially if you are a first time executor! Any omission or error on your part could result in financial losses to the estate, substantial delays in the completion of probate and the transfer of assets to beneficiaries and, in certain circumstances, personal liability for you as executor or personal representative.
Executors have a general duty to administer the deceased's estate and to distribute the estate to the beneficiaries named under the deceased’s Last Will and Testament or, in the absence of a Last Will, to the deceased’s heirs in accordance with state intestacy laws. In carrying out your duties as executor, you will be obliged to act promptly and in the best interests of both the estate and the deceased's beneficiaries or, as the case may be, heirs.
Amongst other things, you will have to:
At each stage, you will need to comply with specific time frames and make specific filings in court. Failure to understand what you are doing and to comply with these rules can be costly to both you and the estate.
We have created a guide to probate that will help you avoid the most common mistakes made by executors when probating an estate. The Guider is called “How To Probate An Estate – A Step-By-Step Guide For Executors”
"How To Probate An Estate" is essential reading for anyone thinking about acting as an executor of someone’s estate! By using it, you'll learn about the various stages of probate and what you will need to do at each stage to successfully navigate your way through to closing the estate and distributing the deceased’s assets.
This book is designed to guide you step-by-step through the probate process and to give you the knowledge and confidence to act as an executor. It explores each step of the process from the moment the deceased passes away right through to the distribution of the deceased’s assets and the closing of the estate. It covers non-routine matters such as obtaining death certificates, dealing with autopsies and planning funeral arrangements; as well more typical matters such as locating, collecting, managing and distributing assets. You'll learn how to deal with creditor claims, what taxes need to be paid and even how to wind up a living trust if necessary.
Having this book is like having someone help you through the probate process - step-by-step!
“How to Probate an Estate” is your one-stop resource for successfully probating an estate. It answers your questions in plain simple English and takes the mystery out of settling an estate. It’s like having an attorney working with you!
Chapter 1: Overview of Probate and the Executor Role
What is Probate and How is it Commenced?
Letters of Authority
Why are Letters of Authority Necessary?
Are Letters of Authority Always Needed?
Who is Entitled to Apply for Letters of Authority/Administration?
The Executor’s Role Once Appointed
Who is Entitled to be an Executor?
How Long Does Probate Take?
How Much will Probate Cost?
Do You Need a Lawyer?
Chapter 2: Duties and Responsibilities of Executors
Responsibilities of an Executor
General Duties of an Executor
Fiduciary Duties of an Executor
Duty to Adhere to the Terms of the Will
Duty to Secure Assets
Duty to Keep Estate Assets Separate from Other Assets
Duty to Act Personally
Duty to Act in the Best Interests of the Beneficiaries
Duty to Account
Duty to Invest Prudently
Duty to Carry Out Duties Without Payment
Duty to Not Benefit Personally
Powers of an Executor
Protections for the Executor from Liability
Protection Under the Terms of a Will
Obtain the Consent of Beneficiaries
Take Out an Executor’s Insurance Bond
Obtain the Consent of the Probate Court
Payment of Compensation to Executors
Should you Accept the Role/?
What to Expect When Appointed!
Resigning After Accepting the Appointment
Declining to Act as Executor
Chapter 3: The Executor’s Duties: What to Do Immediately
What to Do if Death Occurs at Home
Obtain Copies of the Death Certificate
Review Letter of Instruction
Locate the Will and Other Important Papers
Organize Anatomic Gifts
Arrange Funeral and/or Memorial Service
Chapter 4: Making Sense of the Will and What to Do if There isn’t One
Determining Whether a Will is Valid
Age of Majority
Format of a Will
Signing of a Will
Witnessing a Will
Notarizing a Will
Reading of the Will
Notify Beneficiaries and Others
Appointment of an Administrator
Distribution of Assets on Intestacy
Chapter 5: The Executor’s Duties Taking Stock
Estimate Cash Needed for Immediate Future
Reducing Expenses During Those First Few Days
Determine Various Special Needs (e.g. minor children)
Initial Inspection and Protection of Property
Chapter 6: What an Executor Should Do in the First Month
Set up a Filing System to Cover Probate & Estate Matters
Organizing by Category
Organizing by number
Obtain a Tax Identification Number
Open a Bank Account in the Name of the Estate
Sort Through the Deceased’s Personal Belongings
Review Letter of Instruction
Review Check Books and Bank Accounts
The Deceased’s Mail
Safe Deposit Box
Claim any Unpaid Salary, Insurance and any Other Benefits
Managing the Estate
Send Death Notices to the Utilities, Banks and Credit Card
Cancel Unnecessary Estate Outgoings
Dealing with Depreciating Assets
Managing Personal Property
Managing Real Estate
Joint Tenancy with a Right of Survivorship
Tenancy by the Entireties
Tenancy in Common
Management of Property
Managing Cash Accounts and Investments
Managing a Business
Limited Liability Companies
Managing Debts of the Estate
Dealing with Taxes
Keep Copies of all Documents
Chapter 7: Property that Doesn’t go Through Probate
When is Probate Necessary?
Payable on Death or Transfer on Death Accounts
Transfer on Death Securities
Life Insurance Proceeds
Joint Ownership of Property
Revocable Living Trust
Probate Free Transfers of Assets
Chapter 8:How to Initiate the Probate Process
What are the Main Steps in a Probate Procedure?
Who Can File the Petition?
Where to File a Petition for Probate
How Long will Probate Take?
Is a Lawyer Required to Assist with Probate?
Types of Probate
Small Estate Affidavit
Small Estate Administration
Formal or Supervised Probate Administration
Initiating Supervised Probate
Notifying Interested Persons
Proving a Will and Dealing with Will Contests
The Requirements of a Surety Bond
Collecting and Inventorying the Estate’s Assets
Chapter 9: Creditor Claims
Dealing with Creditors
Identification and Notification of Creditors
Time Limitations on Submission of Claims
Evaluation of Claims
Payment of Claims in Solvent Estates
Priority of Payments in Insolvent Estates
What Assets Should Not be Used to Pay Debts?
Chapter 10: Estate Tax
Responsibilities for Payment of Tax
Federal Income Taxes of the Deceased
State and Local Income Taxes of the Deceased
Federal Income Taxes of the Estate
State and Local Income Taxes of the Estate
Estate and Inheritance Taxes
Federal Estate Tax
State and Local Estate and Inheritance Taxes
Chapter 11: Distributing Assets and Closing the Estate
When Can I Close the Estate and Distribute the Assets?
The Requirement for an Accounting
Preparing an Accounting
Formulating a Plan for the Distribution of the Estate Assets
The Doctrine of Lapse
A Spouse’s Right of Election
Family Allowance for Support
The Exemption for the Benefit of the Family
Right to Remain in the Family Home
Right to Receive Family Residence
Right to Automobiles
Right to Reimbursement of Funeral Bill
Abatement of Assets
Petitioning the Court to Approve the Plan of Distribution
Giving Notice of the Hearing
Distributing the Estate Assets
Cars, Boats and Other Vehicles
United States Savings Bonds
Publicly Quoted Stocks and Bonds
Transfer of Joint Tenancy, Community and Other
Distributing Property to Children
Obtaining and Filing Receipts
Closing the Estate
What if the Estate isn’t Ready to be Closed?
Chapter 12: The Settling of Trusts
What is a Trust?
What Exactly are Living Trusts?
Parties to a Living Trust
The Successor Trustee
Obtain Certified Copies of the Death Certificate
Obtain a Tax Identification Number for Trust
Collection and Management of Trust Assets
Claim Life Insurance Proceeds
Gain Access to Bank Accounts and Other Financial Accounts
Identify Debts Owed by the Grantor
Management of the Trust Assets
Maintain Proper Accountings of Trust Assets
Preparing and Filing Tax Returns
Federal Estate Tax
Trust Income Tax Returns
State Taxes and Pick-up Taxes
Transferring Property to Beneficiaries
Administering a Child’s Trust
The following forms are included with this book:-
Estate Planning Worksheet