Probate 101: The Basics of the Probate Process January 19, 2016
After a person passes away, his or her estate and all its components must be accounted for and distributed among heirs, inheritors and creditors according to a special court process known as probate. The probate process heavily relies on the executor—the person the deceased put in charge of protecting his or her property as outlined in the official will—working in tandem with the probate court. Without a will or a specifically appointed executor, the probate court will select a person it considers the most fitting to be the executor or administrator of the estate.
Most states in America use the Uniform Probate Code (UPC) to carry out probate matters. The UPC was designed by experts to make the whole probate process a bit smoother. However, Texas is one of the few states that does not use the UPC. Instead, it uses similar protocol that governs what documents are required, what information they must include and when everything must be filed. Probate cases can vary from situation to situation, but the process in states that don’t adhere to UPC protocol can be broken up into three categories: getting things in order, distributing the deceased’s estate and closing the deceased’s estate.
Getting Things in Order
- Appoint an executor. Probate courts look to the deceased’s will to appoint an executor of the estate. If the the deceased did not name an executor in his or her will, or if he or she did not have a will at all, the court will appoint an administrator, who will be required to post a bond.
- File an application for probate. The executor or an interested party must file an application (sometimes referred to as a petition) for probate. Generally, the application will be filed in the county where the deceased lived or died. Also, the executor will need to file the original will with the probate court (if the deceased has a will, that is).
- Notify the right people. The executor will need to to notify the deceased’s heirs, beneficiaries and creditors according to the court’s protocol—generally via mail. Proof of this notification should be kept for records.
- Validate the will. This is often accomplished by providing witness statements from one or more witnesses and having those statements notarized.
- File important documents. These court-required documents may vary from county to county.
Distributing the Deceased’s Estate
- Account for the Estate. The executor will need to secure an estate identification number from the IRS. He or she will then need to notify the welfare or state health department of the deceased’s death, if doing so is mandatory according to state law. Additionally, it’s generally necessary to open an estate bank account for probate matters.
- Take inventory. It’s the executor’s responsibility to take inventory of the deceased’s assets and have them appraised. Inventory and appraisal values need to be filed.
- Account for taxes. It’s important to prepare for and file the deceased’s income tax returns.
- Notify creditors. The executor will need to notify creditors (usually via mail) of the death and pay off the deceased’s debts. The probate court may also require the executor to file a list of claims from creditors, whether approved or denied.
Closing the Deceased’s Estate
- Notify heirs. The executor will need to notify heirs and beneficiaries to let them know that the last estate hearing is upon them. It is a good idea to file proof that beneficiaries have been notified.
- Distribute the deceased’s property. The executor is in charge of this step in the probate process and should get the court’s approval to administer the assets. When distributing assets, it is wise to get receipts when possible. After all assets have been distributed and probate matters are accounted for, the executor needs to request to be relieved of his or her probate responsibilities.
Reach Out to HBWV for Assistance with Probate
At Hayes, Berry, White & Vanzant, we understand the probate process is complex and can be difficult to navigate for those who are unfamiliar with it. We’re here to help! If you need assistance with probate or other estate planning matters, count on our highly experienced and helpful probate lawyers. Simply give us a call at (940) 387-3518, or feel free to contact us here.
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