Wills Trusts and Probate
Probate Process and the Will

Probate is the process whereby it is determined through judicial proceedings how property is to be distributed, to pay taxes and to settle the debts of the estate. After all taxes and debts are paid the final disposition of property to the heirs is made.    

  Intestate

The probate process is generally begun by a family member. There is a petition to probate and a filing fee which will vary by state. If the family does not initiate a probate then a creditor can step in a petition the courts to begin the probate process. The process can vary depending on the complexity and size of the probated estate, but it can take as much as four months to upwards of one year.

  Intestate Probate Procedure

• First: Be sure there is no will. You can check with the probate court of the state the deceased resided in. Its possible to buy a copy of a will if one was filed there.

• Creditors: All known creditors are notified and have an opportunity to prove a claim against assets. The courts will decide the validity of these claims. Notice to creditors will vary. Often, the courts will require that the estate publish a request for creditors to step forward and this procedure is given a set amount of time as designated by state law.

• Federal Tax:

• 1040: For the deceased earned income.
• 1041: For any Estate Income Tax
•   709:   For any Gift Tax returns

State Tax : Taxes will vary by state and taxes may have to be filed in each state property was held.

• Administrators to the Estate: A family member can step forward and act as the executor and pay bills and handle all estate business until it is distributed. If not, then the courts will appoint an administrator. This is a costly and time consuming process and a big reason why everyone should at least have a will.

• More Than One State: If the estate has property in different states, then the property gets probated in the state in which the owner was a permanent resident and then probated in each state in which property is held.

• Intestate succession: State laws determine who gets a person’s property when there is no Will. These laws will also determine the distribution of any property not mentioned in the will.

 Testate

  When the deceased has a will wishes will be known and executor generally will have been appointed. Assets may still be probated to clear title and determine all creditors and debts.

 Testate Probate Procedure

If the deceased has a will then the procedure is different. The will generally appoints and administrator who is responsible for the execution of the deceased wishes and must handle all the business of the estate until its distributed.

• A valid Will: A family member generally will petition the court to open the estate. An executor will be appointed and has the right to refuse. If the executor does refuse then the courts may appoint an administrator.

• Will Contest: Witness’s will be called into court to verify that they did witness the will and it is the wishes of the deceased. If the will is contested it may contested by a party that has a stake in the wills distribution. Its possible this objection could lead to court proceedings.

• Executor Responsibilities: The executor must inventory all assets and appraisal value. The executor will be responsible for management of all the assets including paying bills, taxes and creditors.

• Property Valuation: The executor or administrator must present a list of all assets and their value.

1.  Raw land: Raw land may have to be appraised and a value assigned for estate tax purposes.
2.  Property: Real property is appraised and valued at fair market value
3.  Exempted Assets: Some real assets such as jointly owned property or assets that have recently passed from the estate before death may be included in the inventory list for tax purposes.

• Property Management: The asset must be maintained and all taxes and maintenance must be done by the administrator. If the property is a rental unit then rent must be collected and deposited, units must be made rent ready and leased with a clear understanding of Fair Housing rules and tenant/landlord law. Evictions, late fees and three day notices must conform absolutely to state and local law. This can be a complicated area that is full of law. The administrator can be liable for improperly managing assets. Unless there is someone familiar with property management it might be advisable to have a professional property management firm until the estate settles.

• Reporting to the Courts: The executor will report to the courts all activities regarding paying bills and generally doing the business of the estate. When all bills and creditors have been paid and title to all property is clear, the executor will report to the courts. If the reports are approved and there are no dissenting voices, the executor may the assets according to the wishes of the estate.

  REsourced from www.yourpropertypath.com
  

  You may republish this article, as long as you do not edit and you agree to preserve all links to the author and www.yourpropertypath.com