SWAAY’s recent article entitled “What is the Probate Process in Florida?” says that while every state has its own laws, the probate process can be fairly similar. Here are the basic steps in the probate process:
The family consults with an experienced probate attorney. Those mentioned in the decedent’s will should meet with a probate lawyer. During the meeting, all relevant documentation like the list of debts, life insurance policies, financial statements, real estate title deeds, and the will should be available. The lawyer will prepare and file petitions and documents and explain the probate process.
Filing the petition. The probate process would be in initiated by the personal representative (executor in other states) named in the will. He or she is in charge of distributing the estate’s assets. If there’s no will, you can ask an estate planning attorney to petition a court to appoint a personal representative. When the court approves the estate representative, the Letters of Administration are issued as evidence of legal authority to act as the personal representative. The personal representative will pay state taxes, funeral costs, and creditor claims on behalf of the decedent. He or she will also notice creditors and beneficiaries, coordinate the asset distribution and then close the probate estate.
Noticing beneficiaries and creditors. The personal representative must notify all beneficiaries of trust estates, the surviving spouse and all parties that have the rights of inheritance. Creditors of the deceased will also want to be paid and will have three months to make a claim on the estate.
Obtaining the letters of administration (letters testamentary) obtained from the probate court. After the personal representative obtains the letter, he or she will open the estate account at a bank. Statements and assets that were in the deceased name will be liquidated and sold, if there’s a need. Proceeds obtained from the sale of property are kept in the estate account and are later distributed.
Settling all expenses, taxes, and estate debts. By law, the decedent’s debts must typically be settled prior to any distributions to the heirs. The personal representative will also prepare a final income tax return for the estate. Note that life insurance policies and retirement savings are distributed to heirs despite the debts owed if they transfer by beneficiary designation outside of the will and the probate process.
Conducting an inventory of the estate. The executor will have conducted a final account of the remaining estate. This accounting will include the fees paid to the personal representative and attorney, probate expenses, cost of assets and the charges incurred when settling debts.
Distributing the assets. After the creditor claims have been settled, the personal representative will ask the court to transfer all assets to successors in compliance with state law or the provisions of the will. The court will issue an order to move the assets. If there’s no will, the state intestate succession laws will decide who is entitled to receive a share of the property.
Finalizing the probate process. The last step in the probate process is for the personal representative to formally close the estate. The includes payment to creditors and distribution of assets, preparing a final distribution document and a closing affidavit that states that the assets were adequately distributed to all heirs. Learn more about the probate process by contacting our office.
Reference: SWAAY (Aug. 24, 2020) “What is the Probate Process in Florida?”