When a loved one passes away, the survivors go through a period of mourning that is typically marked by grief and other strong emotions. For one person, however, the mourning process must give way to the legalities of the decedent’s death. Whoever was appointed as the Executor in the decedent’s Last Will and Testament must find a way to focus on the administration of the decedent’s estate, a process referred to as “probate.” If you find yourself the Executor of the estate of a recently deceased loved one, and you have never before served in that capacity, it can be a bit intimidating. Although the probate process is unique for every estate, it may help to learn some of the most common steps in the Carmel probate process.
Probate Basics
Over the course of a lifetime, almost everyone acquires assets that become part of their estate at the time of their death. Some people amass a huge estate that includes complex and valuable assets while other people own little more than their personal possessions at the time of death. Regardless of the size and value of assets owned by a decedent, those assets must be identified, valued, and passed down to the new owners. That is the primary purpose of the legal process known as probate. Before those assets are passed down, however, there are a number of steps an Executor must oversee during the probate process.
Probate Steps
Although the probate process is unique for every estate, common steps in the process include:
- Identifying, locating and valuing estate assets – as soon as possible after the decedent’s death, you must complete an inventory of the decedent’s assets, including both tangible and intangible assets. Assets must also be secured which may mean doing things such as closing a financial account or locking up real property. A date of death value will be required for all estate assets as well. For some assets, this may require you to secure the assistance of an appraiser.
- Categorizing assets as probate or non-probate assets. Not all assets are required to go through probate. Common assets that bypass the probate process include assets held in a trust, proceeds of a life insurance policy, and certain types of jointly held property.
- Initiating the probate process – you will need to submit an original copy of the decedent’s Last Will and Testament to the appropriate probate court within a specified number of days after learning of the death or learning of the appointment as Executor, whichever comes later. The Will must be accompanied by a petition to open probate and a certified copy of the decedent’s death certificate.
- Notifying creditors – Known creditors may be notified personally; however, unknown creditors of the estate must also be notified by publishing the notice of probate in a local newspaper.
- Identifying, locating, and notifying beneficiaries and/or heirs. If the decedent left a Will and/or a trust, the beneficiaries named in that Will and/or trust must be notified. In an intestate estate administration, the legal heirs of the estate must first be determined by the court and then notified.
- Reviewing claims filed by creditors. All claims filed by creditors must be evaluated by the Executor (or Personal Representative in an intestate estate) and approved or denied. Approved claims must be paid, in the order of priority, using available assets.
- Selling assets, if necessary, to pay creditors. Sometimes an estate lack sufficient liquid assets to pay all creditors. In that case, the Executor/PR must sell estate assets to raise the funds required to pay the debts of the estate.
- Defending the Will or litigating creditor claims – if anyone challenges the validity of the Will submitted to probate, the Executor must defend the Will throughout the ensuing litigation. In addition, a creditor whose claim was denied may appeal that denial to the court in which case the Executor/PR must represent the estate during the litigation.
- Calculating and paying taxes – the estate is subject to state and/or federal gift and estate taxes. The Executor/PR must prepare the appropriate tax returns and if taxes are owed, they must be paid out of available estate funds before wrapping up probate.
- Transferring the remaining assets –at the end of the probate process, the Executor/PR must effectuate the transfer of the remaining assets to the intended beneficiaries and/or heirs of the estate.
Contact Carmel Probate Attorneys
For more information, please join us for one of our FREE seminars. If you have specific questions about the Carmel probate process, contact the experienced Carmel probate attorneys at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
Paul A. Kraft, Estate Planning Attorney
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
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