BASICS OF PROBATE

What is Probate?

Probate is a legal process to settle the estate of a deceased person by validating a will, if there is one, paying off legitimate debts owed by the individual and distributing the remaining assets to beneficiaries and heirs. 

Probate takes place in the county where the decedent resided.

Probate court oversees the handling of the estate and grants a personal representative or an executor/executrix, if there is a will,  the legal authority to administer the estate.  Probate typically takes 9 to 18 months from opening the estate to final discharge. 

10 KEY ELEMENTS OF THE PROBATE PROCESS

Estate Executor’s Duties During the Probate Process

READS YOUR WILL

• Expedites your burial instructions.
• Meets members of your family and other interested parties who desire aid and information, confers with your attorney who drew the Will and persons familiar with your financial affairs.

SAFEGUARDS YOUR ASSETS

• Takes such immediate protective measures as are desirable prior to appointment as executor.
• Looks into insurance and protection of both real and personal property.
• Secure knowledge of your ongoing business interests.
• Examines all your books and files.
• Gives notice of your death to banks, safe deposit companies and others.

PETITIONS THE COURT FOR PROBATE OF YOUR WILL

• Obtains proof of heirship, locates witnesses; through attorney for estate, petitions for probate of Will and, from time to time, applies for all necessary court order in administration of estate.

ASSEMBLIES AND INVENTORIES ALL OF YOUR ASSETS

• Takes proper steps to collect policies of life insurance.
• Secures tax waivers and collects all cash.
• Inventories and appraises household goods and effects, removing valuables to vault.
• Presses all claims for amounts due, locates evidence and witnesses on contested claims.
• Arranges proper supervision and management for your ongoing business interests.
• Obtains custody of securities. Collects all interest and dividends.
• Inspects condition, leases, taxes and mortgages of real estate, and arranges for management.

PROCURES APPRAISAL OF ALL OF YOUR ASSETS

• Gathers complete and satisfactory evidence of the value of all assets at the date of your death.

ADMINISTERS YOUR ESTATE

• Governed by the wishes expressed in your Will, the requirements of your estate, and the local probate law.
• Gives special study to valuable collections; determines method and time of sale for articles not bequeathed; makes a careful estimate of amount of cash to be raised for payment of taxes, legacies, and expenses of administration and of probable net estate for distribution.
• Gives exhaustive study to your business interests and determines policy of continuance, liquidation, or sale with due regard to expressions in your Will. Carries out or adjusts incomplete contracts.
• Makes comprehensive review of market conditions for each security to decide which should be sold first, if necessary to meet taxes, expenses, claims, and specific bequests.
• Investigates all real estate from standpoint of earnings, market, and desirability in case circumstances require its sale.

MAKES ALL YOUR TAX RETURNS

• An intricate and involved procedure in which particular forms of information and return must be prepared and filed with each taxing body.
• Pays your inheritance and estate taxes.
• Pays your income taxes.
• Attends to Income Tax for part of year prior to your death.
• Arranges for necessary proceedings to release securities of property located in other states.
• Ascertains and pays inheritance tax in state of residence; obtains waivers for transfer of securities.
• Files return and pays tax for part of year after your death.
• Makes careful survey of all possible tax claims to see that no further liability exists upon review by the government.
• Files preliminary notice, prepares return, and pays both State Inheritance and Federal Estate Tax.

SETTLES ALL PROPER CLAIMS

• Publishes notice to creditors; obtains all available evidence regarding propriety of each claim filed, resists all improper claims; pays out of estate funds all approved and allowed claims.

DISTRIBUTES YOUR PROBATE ESTATE

• Prepares data for final account showing in detail all receipts and disbursements; notifies interested persons of hearing on account, after settlement of account by court, distributes remaining property of your estate as directed by court.

OBTAINS FINAL DISCHARGE

• After final payment and distribution to legatees and devisees, secures final discharge as an executor.

THE PROBATE TIMELINE

1-2 months

Prepare and File Petition for Probate 

2-3 months

Court hearing on the Petition for Probate                                                                                       

2-4 months (if not contested)

The following are issued: Letters of Administration, Orders for Probate,

Duties and Liabilities, Issue Bond (if ordered), & **Letters Testamentary **                                  

2-4 months

Notice to Creditors

4-8 months     

Notice to Department of Health Services Inventory & Appraisement 

6-12 months   

Pay State and Federal Taxes (if necessary) 

6-15 months   

Allow or Reject Creditor Claims

Possible Preliminary Distributions

Notice to Department of Health Services (if deceased received medical)

Notice to Franchise Tax Board (if heir is out of state)

Claim of Exemption (if assets transfer to a minor)                                                                                                          

6-18 months   

Receive Final Tax Letter from State and Federal (if appropriate) 

8-16 months     

File Petition for Final Distribution and Accounting 

Hearing on Petition for Final Distribution and Accounting

Order Approving Final Distribution and Accounting

9-17 months

Distribution of Assets to Heirs 

9-18 months   

Final Discharge Order (indicates close of probate case) 

9-18 months   

Final Distribution of Funds