- What is the probate process?
- Probate is a process supervised by the probate court where the property, called the estate, of a deceased person is passed on to his or her heirs and legatees (the people or organizations named in the will). The entire process usually takes about one year. However, distributions from the estate can be made while the will is in probate.
- What property is subject to the probate process?
- The probate estate includes all property held in the deceased person’s name. Certain kinds of property, such as property owned jointly by the deceased an another person, life insurance, and property held in trust, are not part of the probate estate and are not subject to the probate process. For example, jointly owned bank accounts pass automatically to the surviving joint owner(s) upon the death of one of the owners without going through probate. The non-probate property, however, is part of the deceased person’s taxable estate.
- How is the probate process started?
- The first step is to file a petition for probate of the will with the probate court along with the original will and a certified copy of the death certificate. Notice must be mailed to all of the deceased person’s heirs at law (usually the surviving spouse, children and children of any deceased children), to those named as beneficiaries in the will, and, if a charity is involved or there are no heirs at law, to the Attorney General. Notice must be also published in a local newspaper. If no one objects by a deadline set by the court, the executor named in the will is appointed by the court.
- What does the executor do?
- The executor is responsible for collecting the probate property and for paying any debts of the estate. The executor must file with the probate court an itemized list, known as an inventory, of the probate property, including the value of each item. The executor must file an estate tax return within nine months of the date of death. This is true even if no estate tax is owed, if the deceased person owned real estate or the executor wants his or her final accounting allowed by the probate court. Creditors of the estate have one year to bring claims against the estate. Executors generally wait until this claim period has expired to complete distribution of the estate according to the terms of the will. As his or her final responsibility, the executor must file an accounting with the probate court showing the income and expenditures of the estate administration.
This information provided here is a summary only and does not take into account your individual situation. Please contact me at North Shore Elder Law & Estate Planning to learn more about the probate process.