Whether you've heard it from people around you or from the movies, we all know that people create a will to handle loose ends in the event that they die.
But what does it actually look like when a will needs to be executed?
When a person dies, there are a number of events that must occur in order to finalize their affairs and figure out what to do with their assets.
A will helps direct what should be done with assets, among other things, and executing the will starts the process of Probate.
The more assets contained in the estate, the longer the probate process will be.
What we'll cover:
Filing For Probate
When it's time to execute a will, you start by filing a petition of probate at the county clerk along with the death certificate.
This responsibility falls upon whoever has the will in their possession, often times a probate attorney or a family member that has access to the will, sometimes in a bank's safety deposit box.
The county that needs to receive the filing is the one that the decedent lived in when they did, and it must be done in a reasonable amount of time.
Some states may have different time frames for filing for probate, but in many states the window is within a year after death. Be sure to check with your state law to know how long you have to file for probate.
Once the form is completed and filed with the county clerk, they will then issue a citation and posted a notice that an application of probate has been filed so that a hearing can be scheduled.
Generally, the notice is posted in order to notify anyone who may contest the will or the administration of the estate.
This process can take 3-6 weeks to hear back from the court on their decision to admit the will to probate.
Nothing moves forward until the judge declares that the will is valid and signs appropriate court orders that confirms an executor to begin the process.
Once the court approves the petition, the person that filed the petition for probate will need to formally notify the heirs and beneficiaries, usually within 3 months.
This is ideally done before the hearing so that waivers of process and consents to probate from all parties can be received in time.
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Appointing The Executor of The Estate
he probate process requires that an executor is appointed, and they have a fiduciary responsibility to oversee all transactions of the estate, ensuring that the assets are distributed correctly.
The role of an executor is not to be taken lightly, as it can lead to personal liability if they fail to perform their duties.
An executor may be nominated through the estate (which normally occurs during the estate planning stage), or by the heirs and beneficiaries.
If the executor was nominated through the estate, then a self-proving affidavit must be provided to execute that appointment. The affidavit would have been signed by the decedent and executor nominee when the will was created.
If there are no nominations for an executor, or if the nominee wishes to not become the executor, then the court may appoint one.
Regardless of how the executor is appointed, the court will have final approval in who becomes the executor.
There's also one critical component to the executor: the status of dependency.
The executor of the probate process can be either a dependent or independent executor.
An independent executor has a few basic conditions that have to be met by the court, but otherwise doesn't need to be supervised by the court when deciding on transactions with the estate's assets.
The benefit to an independent executor is that there are less costs, since many things don't require the court's involvement, and the process can move much more quickly.
Not all states, however, offer the option to appoint an independent executor, so it's important to check with your states laws regarding this.
A dependent executor, on the other hand, will operate under the scrutiny of the court, meaning that in order to sell a car, stock, or other assets, or an attempt to pay any debts must first go through the court-supervised process in order to obtain approval.
This is the default method used for most states' probate cases.
The executor must also file all accounting records with the Court for each year of the probate, including receipts for expenses and bank statements plus verification from accounts owned by the Estate.
Once an executor is appointed, he/she will receive a Letter of Testamentary, which is an official document issued by the court allowing the executor to act on behalf of the estate's transactions.
In some cases, bond must be posted before being able to accept the letter, which essentially acts as insurance in case there were any financial damages done by the executor.
Proceeding with Inventory of Assets and Notice to Creditors
Once the executor has officially accepted their appointment, it's time to begin the arduous process of locating and tallying all assets and debts, as well as moving forward with notifying all parties involved.
Locating and calculating assets can be difficult because the decedent may have had many different accounts and locations that weren't known by others or easily documented, causing this process to take much longer than anticipated.
Some hidden assets can sometimes be identified through documents such as insurance policies and tax returns.
These assets will include anything such as real estate, vehicles, and other recreational materials (boats, yachts, etc).
Real estate is often one of the things that elongates the probate process because of how long it takes to sell the house.
When it comes to financial assets such as bank or investment accounts, once a bank or other financial institution receives a notice or death certificate, they will freeze accounts under the decedent's name, allowing the executor to assess and move those assets into the estate.
From here, the report of inventory and claims are then itemized, according to the value at the time of death, and submitted to the court to be officially logged.
Assets need to be appraised in order to assess the value at death, and that generally needs to be done within 90 days.
There are some time sensitive tasks that the executor will need to take care of.
- The executor will have to prepare a notice to creditors and send it to the local newspaper to be published within one month of receiving the Letter of Testamentary.
- Creditors that have liens against personal property of the estate are to be notified directly within 2 months of accepting the Letter of Testamentary.
- Certified letters of the full inventory must be prepared and sent to the beneficiaries within 2 months, and the executor must prepare and affidavit that states they have completed the notification.
- It's also the executor's responsibility to keep a balance to cover what's needed for final taxes, and insurance and mortgage payments in order to keep them current and prevent lapse in coverage and from entering foreclosure.
To keep inventory from appearing on public records, the executor can file an affidavit in lieu of inventory under 2 conditions:
- All debts, except for secured debts, taxes, and administrative expenses are paid; and
- All beneficiaries have received the certified mail.
Any creditor who wishes to make a claim must do so within the time frame permitted by that state's statute.
Paying Deceased Debts From The Estate
Once notices are posted, creditors will begin to make claims to recover debts.
It's up to the executor to determine which claims are legitimate and pay them through the estate.
In some cases, the assets will need to be liquidated in order to cover the debts and satisfy the claims.
The executor will also need to pay the decedent's expenses and liabilities that they have incurred such as final income tax and estate tax, which is due within 9 months after death.
Contesting a Will
Family members and beneficiaries of the deceased can contest the will, which can keep it from being finalized.
The contesting must be filed within 2 years, and it's up to the contestants to prove that the will, or part of the will, is invalid.
Final Distribution of Estate Assets
According to the will, or under the laws of intestacy if the deceased did not have a will or the will was not accepted by the court, an executor needs to perform a few final duties.
The executor must provide the court with documentation detailing every transaction during the probate process and the remaining value of the estate
Additionally, they will petition for final distribution for the authority to transfer the remaining assets. On average, this can take 4-12 months.
Once granted, they will then draw up the new deeds for property, and transfer stocks and other assets to the recipients. From petition to final distribution, this may take 4-6 weeks.
Closing the Estate
Once the final assets are distributed from the estate, then you've finally reached the closing point.
The executor can close the estate by filing a closing statement or a closing affidavit with the probate court.
The closing statement will basically be the official statement to the court that everything in the estate was distributed and all the relevant debts have been paid.
All in all, if your final question is "How long does probate take?", the entire average probate timeline can take anywhere between a few months and several years.
If you're about to get started on the probate process, or if you are currently in the middle of probate, then we have included this probate checklist to help break it down to an easy outline for you.
Frequently Asked Questions About Probate
How quickly is probate granted?
It usually takes about 3-4 weeks for the grant of probate to be received. Generally this occurs after the oath swearing has already been done.
Can you check if probate is granted / How do you find out if probate has been granted?
Yes, you are able to view if the probate has been granted. You'll have to go to the probate court and request assistance from the clerk there.
The clerk will be able to look up the estate information (you must provide the decedent's legal name), and they can check the status.
You'll be able to look at the probate file and request copies if the estate has been opened.
Where do I apply for probate?
The probate application is made to the probate office where the deceased resided at time of death.
This means they must have had a fixed/permanent place where the lived within that county.
Can you clear a house before probate?
Most personal items do not have any sort of title documents, such as appliances, clothing, furniture, household goods, and other personal belongings. These items are still subject to probate and need to be included on the inventory filing made with the probate court.
In some cases, there are items, such as heirlooms, that may be requested by siblings, children, or other beneficiaries. In these types of situations where multiple people request the same item(s), the executor can remove these items from the property and keep them in a safe location until the issue is resolved.
If there is not agreement between who is supposed to receive the item or items, then it is within the executor's rights to sell them and split the proceeds among the contestants.
How do I petition probate court?
To file the petition for probate, you must locate the appropriate office for the county where the deceased had a fixed residence. This might be a general unified court clerk, or there may be a separate probate court clerk that you will need to go to.
You can request the form from the county clerk, and they can help provide guidelines to assist you. The application will include a verification that essentially means you're swearing on oath that the filing for probate is correct to the best of your knowledge.
This document will need to be done in front of a notary (and be notarized), and then you can submit it to the clerk.
Make sure you keep a copy for yourself.
What happens if executor does nothing?
If an executor does not file for probate, then they will be unable to transfer title of any assets that exist in the decedent's name.
If the executor does file for probate but then does nothing, they can be personally liable for things like failure to pay estate taxes, incurring interest or penalties.
If the executor is not doing their job, then a beneficiary or another interested person (including a creditor) can petition the probate court to have that executor removed.
Additionally, any beneficiary can file a lawsuit against the executor if the beneficiary believes that the executor is mismanaging estate property or they are doing anything that breaches their duty.
How does an executor close an estate?
In order to close the estate, the executor will need to file a closing statement or file formal accounting, which details all the financial transactions that have occurred to close out the estate.
This requires another court appearance, and if approved, will finally receive a release of liability, which thus ends their duty as executor.