The purpose of this article is to explain the probate process. Probate is a court case wherein the probate court oversees the administration of an estate in order to ensure proper payment to heirs and creditors. If probate is necessary, your attorney will follow these steps to administer the estate through the probate court. The probate process is slightly different depending on whether the decedent had a will in place at the time of death. If there is a will in place, the estate is called a Testate Estate. If the decedent died without a will, the estate is called an Intestate Estate. This article will deal with probate administration of a Testate Estate. In a future article, I will address the differences between administering a Testate Estate and an Intestate Estate, so please stay tuned.
In order to open a probate estate, the executor's attorney will file several documents with the probate court:
- Petition to Admit Will to Probate and for Letters of Office - This document requests that the court open the probate estate, allow the will to control the estate, and issue letters of office - the court order giving the executor the power to administer the estate.
- Affidavit of Heirship - A sworn statement by the executor listing the heirs of the estate.
- Affidavit as to Copy of Will - A sworn statement by the executor that the will being offered to the probate court is true and accurate.
- Oath of Office - A written oath by the executor to uphold his or her fiduciary duty associated with being the executor of the estate.
- Surety Bond or Non-Surety Bond - An insurance bond posted with the court, to ensure that the estate is administered properly.
- Notice to Heirs and Legatees - This is a notice that must be sent to all heirs (people entitled to inherit in the absence of a will) and legatees (people named as beneficiaries of the will) informing them of the opening of the probate estate.
- Publication Notice - A notice to all unknown creditors of the estate that the estate has been opened, which must be published in a newspaper.
Once the above documentation is filed with the court, an initial hearing date will be set. At the hearing, the court will issue Letters of Office giving the executor the power to administer the estate, and also issue an order admitting the will to Probate.
Within 14 days of the will being admitted to probate, the executor's attorney must mail to the heirs and legatees: (1) the petition for probate; (2) the order admitting the will to probate and appointing the executor; (3) a notice regarding the rights of the heirs and legatees.
If the address of an heir or legatee is unknown, the executor is required to publish notice to the heirs and legatees in a local newspaper once a week for three weeks, beginning within 14 days of the entry of the order admitting the will to probate.
The executor must also publish notice to any unknown creditors. This can be combined with the notice to heirs and legatees. After the notice to unknown creditors is published, creditors will have 6 months to file claims with the probate court. The case cannot be closed until this 6 month period has elapsed.
The next step is for the executor to prepare an inventory, which lists the decedent's assets. If the probate case is a supervised administration, as opposed to independent administration, the inventory must be filed with the clerk of court within 60 days after issuance of letters of office. Estates are typically independent administration (which requires less court oversight), unless an interested party requests supervised administration.
In the case of an independent administration, the executor must mail the inventory to each heir, legatee, creditor, or other interested party at least 30 days prior to filing a verified report with the court, which I will describe below. The inventory must also be mailed to any surety that issued a bond to the executor within 90 days of the letters of office being issued.
When the executor has performed all of his or her duties and is prepared to close the estate, his or her attorney will prepare a final accounting showing all of the assets and income that the executor collected on behalf of the estate as well as a proposed plan for distribution to creditors, heirs, and legatees. The account must be mailed to any creditors, heirs, or legatees that have not been paid in full. Along with the final account, the executor will mail receipts of distribution to everyone entitled to a distribution. Anyone receiving a distribution will sign and the receipt showing that they received the distribution indicated in the final account. In a supervised administration estate, the final account and receipts must be filed with and approved by the court. The executor should also obtain written approval of the final account from each interested party.
Finally, a verified final report must be filed with the court, wherein the executor asserts that all of his or her duties as executor have been completed. If the executor is unable to obtain executed receipts of distribution from all required parties, the executor must send notice of the filing of the final report to each such party within 14 days of filing the report. The notice will inform the interested parties that if no objection is filed within 42 days of the date that the report was filed, the estate will be closed and the executor will be discharged.
Once the verified report has been filed and the notice period has passed, a final hearing on the closing of the estate will be held. This final hearing date is typically scheduled at the date of the initial hearing to open the estate, and will typically be approximately one year after the initial hearing date. If the executor has obtained and filed all of the proper reports, notices, and receipts, the court will discharge the executor and close the estate.
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