Is Probate Necessary?
The first step is to determine whether or not probate, or the legal process of administering a deceased person’s assets, is necessary. If probate is not necessary, your task will be significantly easier and will not require a lawyer or extra help. If the will consists of only the following, then probate is not necessary:
- transferring real estate and assets owned jointly to the surviving tenant
- transferring bank accounts and securities registered as “payable on death” to beneficiaries
- transferring IRA and retirement plan funds to beneficiaries
- transferring property to the spouse (in some states - other states may define this as requiring probate)
- transferring assets in trusts - such as AB marital bypass and living trusts) to beneficiaries
Hiring a Lawyer
If the deceased person’s will includes assets not included in the previous paragraph, then you may need a lawyer. This will be the first major decision an executor faces, especially if the estate of the decease is complex with multiple properties, a variety of tax liabilities and multiple disputing inheritors. If you are the main beneficiary, however, and don’t expect any complications with unresolved debt or litigation, a lawyer might not be necessary. If you hire a lawyer, you can either use the lawyer as a consultant, or to have the lawyer do everything. Obviously, the second choice will be more expensive than the first.
Doing it Yourself
For most executors, hiring a lawyer is costly and impractical, as the legal costs can easily outweigh the value of the inherited assets. In this case, you can seek free or cheap legal advice from probate court clerks or court appointed lawyers.
File the Will and Notify Beneficiaries
It is your responsibility to file the will at the local probate court, and to ask the court to confirm you as a personal representative. Once confirmed, you are responsible for notifying the immediate family - normally a spouse and children - as well as named beneficiaries.
Find and Manage the Decedent’s Assets
The probate period, in which assets are properly passed to beneficiaries, can take up to a year. Until then, you are responsible for managing the decedent’s assets, such as real estate or securities, and you have the right to sell these according to your best judgment. Although you have the right to sell and manage these assets, make sure you clarify your intentions
Terminate the Decedent’s Existing Accounts
It is your job to make sure that all the decedent’s accounts, such as Social Security, Medicare, postal, Internet, bank and other accounts are terminated so they receive no further correspondence or bills from these entities.
Open an Estate Bank Account
Now that you’ve closed the decedent’s personal bank account, you should open a new estate account to receive outstanding paychecks, stock dividends or donations to the family.
Pay Outstanding Debts and Taxes
As an executor, all of the decedent’s outstanding debt and unpaid taxes become yours. Make sure these are well organized and make the payments out of the estate. Do not pay debts right away. Notify creditors of the probate proceeding, which gives them a period of time to file a claim to unpaid bills, after which they become invalid. In addition, the executor must file a tax return for the decedent on the year he or she died. Depending on the size of the estate, the executor may also have to pay estate taxes.
Oversee Asset Distribution and Close the Estate
Make sure each beneficiary receives the correct assets. Once all the assets have been distributed and all liabilities have been settled, formally close the estate through the probate court.
Pay for Funeral Arrangements
Last but not least, an executor is responsible for the funding and organizing funeral arrangements. These funds are paid from the estate; if there is not enough money in the estate to cover the funeral, the executor is not responsible for the costs.
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