Barbara Sadler: Need To File A Probate

Probate is the court supervised process of authenticating a last will and testament if the deceased made one. It includes locating and determining the value of the decedent’s assets, paying his final bills and taxes, and, finally, distributing the remainder of the estate to his rightful beneficiaries. In general, a probate will be necessary whenever the deceased left property in his or her name which cannot be passed on to the next generation heirs without a court order. Probates progress through three stages:

 Opening the probate: The opening stage of a probate requires decisions on appointment of the Personal Representative and a determination that the will is valid. In many families, probates can be done by agreement of everyone involved. If this is the case, the probate can begin with the informal probate process. If the deceased left a will, an informal probate begins by filing an application for Probate where the deceased lived. If no will exists, an informal probate begins by filing an application for appointment of Personal Representative. In either case, the court will appoint the person agreed upon as the Personal Representative. If a dispute arises on anything, a formal hearing will be required.

 Administering the probate: The Administration stage of a probate requires the Personal Representative to gather information and records, make an inventory of the assets, give notice to creditors, pay debts, sell assets if necessary, and identify the heirs.

 Closing the probate: The Closing Stage of a probate requires the Personal Representative to distribute the balance of the assets of the estate, after paying costs of the probate and paying the debts, to the heirs. The Personal Representative must also prepare a final accounting showing all financial matters in the administration of the estate.
In each of these three stages of a probate, the participants may proceed informally or formally. These choices allow the parties to proceed by agreeing informal probate when they can agree, or to ask a judge to decide issues formal probate when they cannot agree.

The probate procedure begins when a person dies and an heir or a personal representative files a petition in the probate court located in the county where the decedent died. Courts should be able to provide you with the proper form or give you information on how to obtain the proper form.

Pre-requisites in filling the probate

• Attach additional pages to the forms as necessary. Typically, you must list an estimate of the decedent’s assets which may be lengthy, detail the decedent’s heirs and creditors, and provide basic information about the decedent (his name and where he lived).

• File the completed forms in the Probate Court located in the county where the decedent died. You must pay filing fees. The fees will vary depending on the type of probate procedure. Ask the clerk to provide you with receipts after filing. Once you file your forms with the probate court and pay your fees, the clerk should give you a receipt. The paperwork will be processed and the court will notify you as to any hearings and meetings.

Will Validation

When a person dies, lawyers often refer to that person as a decedent. Before you can begin executing the terms of the will, a judge has to validate the will through probate court. As the executor of the will, it is your responsibility to contact all heirs or beneficiaries of the estate to notify them of the probate hearing. You must also notify the decedent’s creditors of the hearing date. At the probate hearing, you must present the original will and certificate of death to the probate judge. The probate hearing also allows heirs and beneficiaries to contest the terms of the will should they choose to do so.

Financial Responsibilities

The executor must take care of the decedent’s financial affairs including paying outstanding bills via the decedent’s bank accounts and filing his final tax returns. You are also responsible for collecting any payments owed to the decedent at the time of his death. Examples of these types of payments include regular salaries and any type of investment income earned through securities investments, retirement accounts and property. You must deposit all funds you collect in the decedent’s personal or business bank accounts on behalf of the estate.

Disbursements

Once you collect all payments owed to the decedent and pay all of his outstanding debt obligations, you can begin the disbursement process of the estate. This begins by sending a written notification of the disbursement to all of the beneficiaries or heirs to the estate. You will then begin disbursing the assets of the estate to the heirs and beneficiaries of the will according to the decedent’s wishes.

Function of an executor

An executor oversees the management of the estate until the assets are disposed of and the estate is closed. If the will did not specify to whom particular items go to, he must make those decisions. The executor must maintain the assets, such as having repairs performed on a home the deceased person owned. An executor named in a will may file a petition for probate in court once the deceased person has died, and an attorney is typically not required under laws. The executor, or personal representative, of a will is responsible to administer the will on behalf of the decedent pursuant to the terms outlined in the will. Typically, a testator, or person drafting a will, designates an executor in the will. Under the law, the executor owes a fiduciary duty to the estate. A fiduciary duty basically means that the executor must at all times act and make decisions in the best interest of the estate.

Locating the Decedent’s Assets

The executor’s first task involves locating and taking possession of all the decedent’s assets so she can protect them during the probate process. This can involve a fair bit of sleuthing sometimes some people own assets that they’ve told no one about, even their spouses, and these assets might not be delineated in their wills. The executor must hunt for any such assets, typically through a review of insurance policies, tax returns, and other documentation.

Determining Date of Death Values

Date of death values for the decedent’s assets must be determined and this is generally accomplished through account statements and appraisals. The court will appoint appraisers in some states, but in others, the executor can choose someone. Many states require that the executor submit a written report to the court, listing everything the decedent owned along with each asset’s value, as well as a notation as to how that value was arrived at.

Preparing and Filing Tax Returns

The executor will file the decedent’s final personal income tax returns for the year in which he died. She’ll determine if the estate is liable for any estate taxes, and, if so, she’ll file these tax returns as well. Any taxes due are paid from estate funds. This can sometimes require liquidating assets to raise the money. Estate taxes are usually due within nine months of the decedent’s date of death.

Effects an executor

Offering a petition for probate means the named executor must be prepared to act according to law and as directed under the will. Once the will is probated, the document is held as valid in the eyes of the court. The executor receives Letters Testamentary, a document that allows her to access the assets of the decedent, such as bank accounts and retirement savings. Failing to adhere to all court requirements may result in a delay in the probate proceedings, or cost the estate extra money in filing and court fees.

Probating a will may not be an easy process. The heirs have the right to contest the provisions in the will and the validity of the document itself. The basis for a legal challenge to a will depends on the situation, but may include allegations of fraud, undue influence when one beneficiary pressured or manipulated the deceased person into will provision and an assertion that the deceased person was not mentally competent at the time the will was signed.

An executor must account for distribution of assets to the probate court. He must file an inventory and file receipts from the will beneficiaries proving he paid out the correct share of the estate to the correct person. An attorney can help the executor prepare inventory lists and receipts from heirs, but he still must sign the documents. If an executor is not fulfilling his legal obligations, the heirs or an attorney representing the heirs may petition the court to have the executor removed. In Utah, some property and assets can be transferred without having to go through the probate process. These include: payable-on-death accounts; community property with right of survivorship; property that was held as joint tenancy right of survivorship; certain life insurance benefits or proceeds; and certain annuity benefits. Also, if there are any legal conflicts, your attorney can represent you court to help resolve the dispute. The following paperwork should be considered. These are:

• Obtain a certified copy of the death certificate.
• Locate the original last will and testament.
• Select the appropriate probate procedure
• Prepare the appropriate documents to file with the
• Make a copy of the petition, will and death certificate.
• Notify beneficiaries, heirs or creditors of the estate.
• Do an inventory the assets of the estate and pay all debts, including assets, if a formal administration is required.

Each state has specific laws in place to determine what’s required there to probate an estate. These laws are included in the estate’s probate codes, as well as laws for intestate succession when a decedent dies without a will. The hearing gives everyone concerned an opportunity to object to the will being admitted for probate maybe because it’s not drafted properly or because someone is in possession of a more recent will. Someone might also object to the appointment of the executor nominated in the will to handle the estate.

Some people elect to postpone or avoid writing a will because they falsely believe that taxes and administrative expenses may reduce the amount of funds called the corpus that will be distributed to their heirs. However, a will does not complicate the distribution of an estate, but is intended to facilitate the passage of assets and maximize the benefits of the parties. Failing to write one only complicates matters for those who will be left to pick up the pieces.

There are three primary ways to go about creating a will.
• Do-It-Yourself: The assumption that preparing a will requires the use of an attorney and attendant expenses is incorrect. Creating a will can be as simple as writing or typing out how you want your assets to be distributed, naming the guardian or guardians of your minor children, and signing the document in front of witnesses. In some states, a completely handwritten wills legally known as a holographic will does not even require witnesses.

In the majority of states, the requirements of a valid will are as follows:
I. You must be eighteen years or older.
II. You must be of sound mind, with mental capacity to understand and express your desires.
III. The language of the document must clearly state it is your will.
IV. An executor must be named.
V. The will must be signed in the presence of two witnesses who must also sign and date the will. In lieu of witnesses, the signature of the maker can be witnessed and authenticated by a state licensed notary public.

VI. While there is no legal requirement that a will be notarized or recorded with authorities, doing so may safeguard against any claims that it is invalid and generally ease the probate process.

• Prepaid Legal Forms: Rather than rely upon your own ability to correctly decipher the law and properly use legal language, many people use prepaid legal services and standardized, fill-in-the-blanks forms. Lawyers have historically used “boilerplate” language whose meaning is commonly accepted as the result of years of use and litigation. Designed to have limited flexibility in order to save legal fees, such options can be beneficial if your estate is modest and the transfer of your property at death is not likely to be contested.

• Professional Advice: Many people rely upon the advice of an attorney to create or review a will’s details. Here are some reasons to seek professional advice:
I. The size of your estate is significant, or taxes may be due.
II. Management of distributed assets is complex or extensive, especially if assets are located in several states.
III. Your will is likely to be contested.
IV. Children and guardianships are involved.
Critical Parties to a Will
As you execute your will, keep in mind the following roles and responsibilities to be considered:
• Testator: The person who writes the will and whose property is distributed according to the will’s provisions.
• Beneficiaries: The people named in the will by the testator who receive one or more assets from the estate.
• Executor: Sometimes called the personal representative of the testator, the executor is the person who has the responsibility of carrying out the testator’s wishes. Any person of sound mind and legal age can act as an executor.
• Trustee: Executors or testators sometimes name people to manage specific assets of the estate for a period of time for the beneficiaries, especially if minor children are involved. For example, the testator or executor may appoint an investment advisor to manage securities owned by the estate in trust for children until they reach legal age.
• Legal Guardian: The person named by the testator to provide care for minor children until they reach legal age. Guardians are always established when a testator dies with children and no other parent is alive.