Probate Administration & the Legal Process
Probate administration is the process in which a decedent’s assets are managed and distributed according to estate planning documents, such as a will, and state law. By the end of the probate process, debts and taxes should be paid, and all assets should be distributed to their new owners. Probating an estate from beginning to end may take as little as a few weeks or as long as several years, depending on the complexity of the estate and the disputes that arise. However, most estates are probated within a year with minimal court involvement.
Beginning Probate
Many states do not impose a formal deadline to begin probate, but probate is usually initiated within a few months of the decedent’s death. Some state laws require anyone in possession of a decedent’s will to file it with the court within a certain timeframe, but filing a will with the court does not open a probate case. It is generally wise to begin the process within a few months of the death to prevent an estate from suffering avoidable losses and to promptly distribute assets to their rightful owners. Any interested person may begin probate, but probate is often initiated by the executor named in the will.
The Probate Process
A probate case is opened by filing a petition with the probate court. The court will then appoint an executor. The court will usually appoint the executor named in the decedent’s will, if possible. If there is no will, or if the decedent did not name an executor, the court will appoint an executor based on state law. (If the executor is appointed without having been named in the will, they are sometimes known as the “administrator” or the “personal representative.”) If there is a will, and it was not already filed with the court, it will be filed and proven. Once the deadline for creditor claims has passed, the executor has paid all necessary debts and taxes, and any disputes have been resolved, the executor may distribute property to heirs and beneficiaries and close the estate.
An Executor’s Duties
An executor is responsible for shepherding a decedent’s estate through the entire probate process. In addition to filing the appropriate legal documents and complying with the will and court orders, the executor has a fiduciary duty to act in the best interest of the estate. One of an executor’s duties is to manage the estate’s assets during the process and ensure that the estate does not suffer an avoidable loss. The executor must also inventory and appraise the estate’s assets. An executor may hire professionals, such as lawyers and accountants, to help complete their duties. Executors are entitled to reasonable compensation for their work on the estate. (However, executors who will inherit from the estate commonly decline compensation.) Executors are also generally responsible for keeping beneficiaries and heirs informed of the status of the estate and the probate process. An executor’s duties officially end when the probate case is formally closed.
Small Estates
Many states offer small estate procedures. An estate usually meets the requirements for small estate procedures if it falls below a state-specified value and meets other criteria. Sometimes, a state will exempt certain assets, such as assets with designated beneficiaries, from the value calculation. Therefore, many estates with relatively high values may still qualify for small estate procedures. Small estate procedures usually focus on paperwork with little court involvement.
Informal Probate
Like small estate procedures, informal probate involves mostly paperwork. However, there is typically no limit to the size of the estate that may qualify for informal probate procedures. Informal probate is offered by states that follow the Uniform Probate Code (UPC). It is usually approved when there are no disputes to be resolved by the court.
Ancillary Probate
If the decedent owned property in more than one state, ancillary probate may be necessary. Ancillary probate refers to a second probate proceeding initiated in a state other than the decedent’s state of residence for the purpose of managing and transferring the property in the second state. Not all property in a second state needs to be probated through ancillary probate. Most commonly, ancillary probate involves real estate, vehicles, livestock, or oil, gas, or mineral rights.
