Navigating the Probate Process

AuthorMargaret A. Munro, Kathryn A. Murphy
ProfessionHas more than 30 years' experience in trusts, estates, family tax, and small businesses/Attorney with more than 20 years' experience administering estates and trusts and preparing estate and gift tax returns
Pages93-110
CHAPTER 6 Navigating the ProbateProcess 93
Chapter6
Navigating the
ProbateProcess
The decedent has been laid to rest and you’ve handled the immediate tasks
after the death. (Refer to Chapter5 for what you need to do right after the
decedent has died.) Now that you’ve had a moment to breath, you need to
take the next steps in wrapping up the decedent’s aairs. Now’s the time (prob-
ably within a week after the decedent’s funeral) to decide whether you need pro-
bate court administration of any of the decedent’s assets, and if so, how to keep
probate as simple as possible. Probate is the process whereby the decedent’s will,
if any, is proved valid or invalid and the assets in the decedent’s name alone, or
payable to the estate, are administered in the probate estate with probate court
supervision.
This chapter explains how to get the decedent’s will (if any) recognized by the
probate court, and how to get yourself appointed as executor(s) (the decedent may
name more than one executor to act together). We point out what happens if, for
whatever reason, you’re the person charged with administering the decedent’s
estate even though he or she didn’t leave a will. We also discuss how to create the
probate inventory. And if the decedent has a surviving spouse, that person may
have some decisions to make. Last, we discuss how a beneciary or heir can dis-
claim property.
IN THIS CHAPTER
»
Submitting the will to the court
»
Deciding whether and what kind of
probate is necessary
»
Having the executor or administrator
appointed
»
Considering the surviving spouse’s
necessary decisions
94 PART 2 Administering an Estate
Here are a couple things to keep in mind as you navigate the probate system in
your state:
»
Probate is a state, not a federal, concept, and applicable state law will govern.
As more and more states recognize same-sex marriages performed either in
their state or in other jurisdictions, the probate rules contained in this chapter
will apply equally to same-sex and opposite-sex spouses.
»
Throughout this chapter, we make reference to state law and probate court
rules. No two states’ laws are exactly the same, no two states’ probate court
rules are the same, and as a matter of fact, probate court practices can dier
from county to county. And not all courts that administer wills are called
“probate courts.” So when we discuss the procedure for probating your
decedent’s property, you can pretty much count on some quirk in how your
decedent’s county and state handle probate administration that’s dierent
from the quirkiness we describe here.
»
We refer, in general, to the executor. But if there’s no valid will, you’re the
administrator. In some states you’re called the personal representative or some
other name, but we’re still referring to the person appointed to administer the
estate. And the term duciary refers to all the above. That’s the beauty of
individual state law!
Filing the Last Will with the Probate
(Or Equivalent) Court
In most states, the person who has possession of the will is required to deliver the
will to the executor or le the will with the probate court within a certain period of
time (for instance, 30 days) after the decedent’s death. If you’re in the delicate posi-
tion of knowing who has the will but hasn’t led it, you may notify the court so that
the court can compel the ling. Then the probate process can begin. In practice, you
le the will with the petition for probate if you decide probate is required, hopefully
within that 30-day window. Most courts give you some leeway, but make sure that
you know if your probate court will. If it turns out there are no assets requiring pro-
bate, simply take the will to the probate court and sign a statement to that eect.
If the decedent left a will but the estate doesn’t have any assets subject to probate,
the law still requires you to le the will. Just inform the probate court that, to your
knowledge, no assets are subject to probate. This situation can arise when

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