B
O
C
WHAT STEPS ARE INVOLVED IN THE PROBATE PROCESS?
1. Locating and filing the will
2. Initiating the probate process
3. Appointing the personal repersentative
4. Informing the affected parties
5. Filing the inventory
6. Paying creditors, Taxes and Fees
7. Preparing the final Accounting
8. Distributing the assets
9. Closing the Estate
I. LOCATING AND FILING THE WILL
The first step in the probate process is to determine whether the
deceased left a will, that is a legal document prepared by a
person before death directing others how to distribute his or her
property after death. If a will exists, the person is said to have
died "testate."
Although determining that a will does exist might be fairly easy,
finding the will may be more difficult. It is important to locate the
last will and any amendments (called "codicils") to it. Among
the places where people commonly keep wills are strong-boxes,
file cabinets, desk drawers,and safe deposit boxes.
If you have agreed to serve as the Personal Representative for
someone's estate, it is essential to learn in advance where the
person keeps the will. If the will is in a bank's safe deposit
box, please keep in mind that the law requires the box to be
sealed at the owner's death. Because you need to get a court
order to open a safe deposit box, it is not the best place to keep
a will.
Within ten (10) days following death, the will should be filed by
your attorney with the probate clerk in the county where the
person lived at the time of death. In most cases, however,
there is no need to rush to the probate clerk's office. If you have
recently lost a spouse or other loved one, this is a stressful and
vulnerable time. You might want to wait a few months, until you
are feeling settled, to begin the probate process. With the
passage of a few months' time, you may be in a better position to
tackle the decisions and details of probate.
2. INITIATING THE PROBATE PROCESS
Any person entitled to the deceased's property as an heir, as a
beneficiary named in a will, or as a creditor (known as
"interested persons") can file a written request at the probate
clerk's office to begin a probate proceeding. This written
request is typically called a "petition for probate administration."
3. APPOINTING THE PERSONAL REPRESENTATIVE
The court authorizes a Personal Representative to administer
the deceased's estate. A Personal Representative, also called
an executor/executrix, assumes the responsibility for closing
an estate as soon as possible in an effort to distribute the
estate's assets to those who rightfully inherit them without delay.
This person is critical to the probate process.
Personal representatives have a legal obligation to perform their
duties honestly and efficiently. The heirs to an estate can hold a
Personal Representative personally accountable for harming
the estate's financial standing by neglect or deliberate action.
A will typically names the deceased's choice for Personal
Representative, and Probate Courts will normally honor this
choice. When no will exists, or if the Personal Representative
named in the will declines to serve or cannot serve, the court
has the authority to appoint a Personal Representative. Once
the Personal Representative is appointed, the Probate Court
recognizes the Personal Representative's authority to act on
behalf of the deceased's estate. The Court issues a document,
called "letters of administration," identifying the Personal
Representative as the estate's official representative. A Personal
Representative can show this document to a bank officer, for
example, to gain access to a checking account.
Needless to say, the Personal Representative should be a
trusted family member or close friend who will act to carry out the
wishes of the deceased.
A person who decides that he/she does not want to be a
Personal Representative can decline the appointment. A
back-up, or successor, Personal Representative is then
appointed. Similarly, if the Personal Representative feels that the
job involves more effort than one person can handle, the
Court may appoint a co-Personal Representative.
4. INFORMING THE AFFECTED PARTIES
The Personal Representative is responsible for formal
notification and the publishing of public notices in newspapers to
inform potential heirs and creditors about the probate
proceeding. After giving notice, waiting periods follow.
Creditors, heirs, and others can file their claims against the
estate during these periods of time.
1. Locating and filing the will
2. Initiating the probate process
3. Appointing the personal repersentative
4. Informing the affected parties
5. Filing the inventory
6. Paying creditors, Taxes and Fees
7. Preparing the final Accounting
8. Distributing the assets
9. Closing the Estate
I. LOCATING AND FILING THE WILL
The first step in the probate process is to determine whether the
deceased left a will, that is a legal document prepared by a
person before death directing others how to distribute his or her
property after death. If a will exists, the person is said to have
died "testate."
Although determining that a will does exist might be fairly easy,
finding the will may be more difficult. It is important to locate the
last will and any amendments (called "codicils") to it. Among
the places where people commonly keep wills are strong-boxes,
file cabinets, desk drawers,and safe deposit boxes.
If you have agreed to serve as the Personal Representative for
someone's estate, it is essential to learn in advance where the
person keeps the will. If the will is in a bank's safe deposit
box, please keep in mind that the law requires the box to be
sealed at the owner's death. Because you need to get a court
order to open a safe deposit box, it is not the best place to keep
a will.
Within ten (10) days following death, the will should be filed by
your attorney with the probate clerk in the county where the
person lived at the time of death. In most cases, however,
there is no need to rush to the probate clerk's office. If you have
recently lost a spouse or other loved one, this is a stressful and
vulnerable time. You might want to wait a few months, until you
are feeling settled, to begin the probate process. With the
passage of a few months' time, you may be in a better position to
tackle the decisions and details of probate.
2. INITIATING THE PROBATE PROCESS
Any person entitled to the deceased's property as an heir, as a
beneficiary named in a will, or as a creditor (known as
"interested persons") can file a written request at the probate
clerk's office to begin a probate proceeding. This written
request is typically called a "petition for probate administration."
3. APPOINTING THE PERSONAL REPRESENTATIVE
The court authorizes a Personal Representative to administer
the deceased's estate. A Personal Representative, also called
an executor/executrix, assumes the responsibility for closing
an estate as soon as possible in an effort to distribute the
estate's assets to those who rightfully inherit them without delay.
This person is critical to the probate process.
Personal representatives have a legal obligation to perform their
duties honestly and efficiently. The heirs to an estate can hold a
Personal Representative personally accountable for harming
the estate's financial standing by neglect or deliberate action.
A will typically names the deceased's choice for Personal
Representative, and Probate Courts will normally honor this
choice. When no will exists, or if the Personal Representative
named in the will declines to serve or cannot serve, the court
has the authority to appoint a Personal Representative. Once
the Personal Representative is appointed, the Probate Court
recognizes the Personal Representative's authority to act on
behalf of the deceased's estate. The Court issues a document,
called "letters of administration," identifying the Personal
Representative as the estate's official representative. A Personal
Representative can show this document to a bank officer, for
example, to gain access to a checking account.
Needless to say, the Personal Representative should be a
trusted family member or close friend who will act to carry out the
wishes of the deceased.
A person who decides that he/she does not want to be a
Personal Representative can decline the appointment. A
back-up, or successor, Personal Representative is then
appointed. Similarly, if the Personal Representative feels that the
job involves more effort than one person can handle, the
Court may appoint a co-Personal Representative.
4. INFORMING THE AFFECTED PARTIES
The Personal Representative is responsible for formal
notification and the publishing of public notices in newspapers to
inform potential heirs and creditors about the probate
proceeding. After giving notice, waiting periods follow.
Creditors, heirs, and others can file their claims against the
estate during these periods of time.
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OKOYE
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Blog: "Probate Process"
5. FILING THE INVENTORY
Next, a Personal Representative is required to develop
an inventory and appraisal of an
estate's assets and debts which must be filed with the
Probate Court.
When developing an inventory , the Personal
Representative should identify all of the estate's
probate property, including both real estate and
personal property. To conduct the inventory, the
Personal Representative may need to visit a savings
and loan or bank to determine the value of a
savings account on the date of death. When doing so, it
is best for the Personal Representative to
take along letters of administration as proof of his/her
authority.
While the inventory need not detail every last piece of
clothing or all of the pots and pans, the Personal
Representative must place a value on the deceased's
personal articles, including keepsakes. A Personal
Representative may estimate the value of estate
property or hire a professional appraiser to determine
the value of probate assets. A Personal Representative
should be involved in the inventory and appraisal as
much as possible.
When conducting the inventory, the Personal
Representative should distinguish between property that
the deceased owned individually (probate property) and
jointly with right of survivorship (non-probate property).
6. PAYING CREDITORS, TAXES AND FEES
All debts and taxes owed by the estate are then required
to be paid. A Personal Representative is responsible for
determining the validity of creditor claims and paying the
debts. A Personal Representative is also responsible
for preparing and filing the tax returns. The following
types of taxes may arise in estate administration:
A. Personal Income Tax
B. Estate Income Tax
C. Inheritance Tax
D. Estate Tax
Compared with the substantial value of many estates,
court costs and probate administration
fees may seem relatively minor.
In addition to court fees, estates normally incur other
administration costs. Perhaps most
significant among these is attorney's fees and the cost
of providing the required notice. Registered
letters may need to be mailed to all interested parties
and a Personal Representative must publish
notice of the estate in local newspapers. Also, an estate
will have to cover the cost of the Personal
Representative's bond.
7. PREPARING THE FINAL ACCOUNTING
The Personal Representative prepares a final
accounting of the estate's value and debts.
The final accounting is complete once the inventory,
appraisal, and payment of any outstanding
taxes and debts is accomplished. The final accounting is
a detailed balance sheet that shows the
value of all the estate's assets, along with any income or
interest earned, debts paid, money owed,
and tax payments. The final accounting is sent to the
Court and all interested parties for review and
approval. The heirs have a right to challenge this
accounting because a mistake could directly
affect the size of their inheritances.
8. DISTRIBUTING THE ASSETS
The Personal Representative next oversees the
distribution of the estate's assets to survivors,
according to the instructions in the will. If a person dies
without a will, then the intestacy laws of
the State of Florida direct the distribution.
9. CLOSING THE ESTATE
Following approval of the final accounting, a Personal
Representative can close the estate.
To do so, a Personal Representative submits a sworn
statement to the Probate Court and
interested parties which specifies all estate business is
finished. This may require a formal Court
hearing with all interested parties given the opportunity
to attend.
Next, a Personal Representative is required to develop
an inventory and appraisal of an
estate's assets and debts which must be filed with the
Probate Court.
When developing an inventory , the Personal
Representative should identify all of the estate's
probate property, including both real estate and
personal property. To conduct the inventory, the
Personal Representative may need to visit a savings
and loan or bank to determine the value of a
savings account on the date of death. When doing so, it
is best for the Personal Representative to
take along letters of administration as proof of his/her
authority.
While the inventory need not detail every last piece of
clothing or all of the pots and pans, the Personal
Representative must place a value on the deceased's
personal articles, including keepsakes. A Personal
Representative may estimate the value of estate
property or hire a professional appraiser to determine
the value of probate assets. A Personal Representative
should be involved in the inventory and appraisal as
much as possible.
When conducting the inventory, the Personal
Representative should distinguish between property that
the deceased owned individually (probate property) and
jointly with right of survivorship (non-probate property).
6. PAYING CREDITORS, TAXES AND FEES
All debts and taxes owed by the estate are then required
to be paid. A Personal Representative is responsible for
determining the validity of creditor claims and paying the
debts. A Personal Representative is also responsible
for preparing and filing the tax returns. The following
types of taxes may arise in estate administration:
A. Personal Income Tax
B. Estate Income Tax
C. Inheritance Tax
D. Estate Tax
Compared with the substantial value of many estates,
court costs and probate administration
fees may seem relatively minor.
In addition to court fees, estates normally incur other
administration costs. Perhaps most
significant among these is attorney's fees and the cost
of providing the required notice. Registered
letters may need to be mailed to all interested parties
and a Personal Representative must publish
notice of the estate in local newspapers. Also, an estate
will have to cover the cost of the Personal
Representative's bond.
7. PREPARING THE FINAL ACCOUNTING
The Personal Representative prepares a final
accounting of the estate's value and debts.
The final accounting is complete once the inventory,
appraisal, and payment of any outstanding
taxes and debts is accomplished. The final accounting is
a detailed balance sheet that shows the
value of all the estate's assets, along with any income or
interest earned, debts paid, money owed,
and tax payments. The final accounting is sent to the
Court and all interested parties for review and
approval. The heirs have a right to challenge this
accounting because a mistake could directly
affect the size of their inheritances.
8. DISTRIBUTING THE ASSETS
The Personal Representative next oversees the
distribution of the estate's assets to survivors,
according to the instructions in the will. If a person dies
without a will, then the intestacy laws of
the State of Florida direct the distribution.
9. CLOSING THE ESTATE
Following approval of the final accounting, a Personal
Representative can close the estate.
To do so, a Personal Representative submits a sworn
statement to the Probate Court and
interested parties which specifies all estate business is
finished. This may require a formal Court
hearing with all interested parties given the opportunity
to attend.
DISCLAIMER:
This outlines general legal principles and is not intended to give
you legal advice. If you have a specific question about the law,
please consult an attorney.
This outlines general legal principles and is not intended to give
you legal advice. If you have a specific question about the law,
please consult an attorney.
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