The Mascia Law Firm Can Help You Understand the Probate Process

The step required before the property of the deceased can be distributed to his/her beneficiaries or heirs-at-law is there is no will. Probate requires that a personal representative (PR) is appointed to be the executor of the will. Typically a family member petitions to be PR, also known as the administer of the estate.


The Probate Process

When someone passes away and their property (estate) is still in their name, the probate court in the county where they resided requires that a personal representative (PR) be named and their property goes through a process called "probate." This is a legal hoop that the family must go through before passing the property on to the beneficiaries of a Will or heirs-at-law when there is no Will.

The PR is the executor(s) of the Will. The executor (s) files a Petition to Probate the Will and attaches the original of the Will and a copy of the death certificate. This Petition is filed in the county where the deceased person resided. The executor is then required to take an oath of office swearing to distribute the property according to the terms of the will. Once the oath is taken, the executor is issued Letters Testamentary, which allow him/her to act on behalf of the estate.

When a person does not have a valid will in place, someone (usually a family member) petitions to be PR, which is called an administrator of the estate. The administrator(s) of the estate files a Petition for Letters of Administration along with a copy of the death certificate in order to become the PR. This petition is filed in the county where the deceased person resided. The administrator is also required to take an oath of office swearing to administer the estate in accordance with state intestacy laws. The administrator is then issued Letters of Administration allowing him/her to act on behalf of the estate.


The probate assets are then collected and put in the name of the estate. The PR has six months after appointment in which to determine the condition of the estate. The PR must publish a notice to creditors within 60 days of taking office. The creditors are paid in a specific order determined by the state legislature. The bad news is that if the assets run out before the debts are paid, those creditors lower on the list are not paid and no one receives an inheritance. The good news is that no one else, including the PR, is responsible for the remaining debts.

In the course of administering the estate, the PR may need to sell property, either to be able to pay the debts and expenses or to better be able to distribute the estate among the beneficiaries. Also, the PR is responsible for filing certain tax returns. The deceased's final tax return is due by April 15th in the year following the year of death. In addition to the tax returns for the deceased, the PR may be required to file income tax returns for the estate. A federal tax identification number from the IRS may be required for accounts opened by the PR in the name of the estate at financial institutions. This number will also be used on the tax returns filed by the PR for the estate. After the PR settles all claims, expenses and taxes, the remaining assets are distributed to the heirs. The PR may be required to file certain reports with the probate court in which the PR was appointed. Every PR should keep complete and accurate records of all dealings in the administration of the estate until the PR is discharged. When probate is finished a Petition for Discharge should be file closing the Estate. Once the court is satisfied that the administration was proper and that the PR has faithfully performed the duties required, the court issues an order discharging the PR from office and any further liability.

The probate process can be long and confusing this is why it is important to choose an experienced legal team to represent you. Contact us today to explore your options.


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