General Guide to the Probate Process
General Guide to the Probate Process
This timeline is provided to you to serve as a guide only. Many factors can delay the process(i.e., beneficiary location is unknown, creditor issues, litigation) or expedite the process(i.e. minimal assets, limited number of beneficiaries). Many aspects of the process can be completed through the “mail”. However, it is not impossible for the presiding judge to require a hearing on a particular issue. Remember, this is only a guide! If you have questions, please contact us.
The Beginning Phase (minimum 4 months):
- We will need to deposit the original will, if any, with the court as soon as possible.
- We will need to gather general asset information and approximate values of each asset prior to preparing the pleadings to open the estate.
- Within a few weeks-each beneficiary of the estate will receive a copy of the Will and documentation advising them about the opening of the estate.
- When the Judge’s calendar permits, the estate will be open and the Personal Representative will be appointed.
- It is possible that the opening of the estate can be delayed if the Judge requires Bond for the Personal Representative.
- Once the estate is open, Letters of Administration will be issued. These Letters allow the Personal Representative to transact business of the deceased and access any account owned by the deceased.
- We will now request specific asset and value information from the Personal Representative to prepare the estate Inventory. This Inventory is the official listing to the court of all assets that have come into the possession of the Personal Representative. This is a time sensitive document that needs to be filed within 60 days after Letters are issued.
- The title of each asset owned by the estate, except real estate, will ultimately be retitled into the name of the estate. This retitling process can be time consuming and may require quite a bit of paperwork. Real estate is retitled later on in the process.
- We will publish a Notice to Creditors in a local newspaper for 2 consecutive weeks. This publication marks the beginning of what we call the creditor period. Anyone claiming that the deceased owed them money(i.e. credit cards, utility bills, medical bills, etc.) has 90 days from the date of the 1 st publication date to file a claim with the court. We will notify all known creditors within this time period. Creditors that do not file a claim within this time period are barred forever.
- Please note that a Personal Representative is responsible for properly handling the funds of the estate. Do not use any estate assets in any manner without consulting our office first! In addition, the Personal Representative is responsible for investing the assets of the estate pursuant to the “prudent investment rule”. We will discuss this very important responsibility with you.
The Middle Phase (approximately 2 months):
- Various other pleadings will be prepared and filed during this phase. We will also begin advising the Personal Representative about beginning the process of accounting to, and distributing assets to, the beneficiaries.
- The distribution process will most likely be done in stages as opposed to all at once. This allows the estate to manage its expenses. The estate may need to retain some funds to pay taxes(federal estate taxes and/or income taxes) and other expenses of administration. This process may flow over into the following tax year in order for the estate to have the tax returns prepared and filed. Many estates cannot close without filing tax returns. If a Federal Estate Tax Return (Form 706) is due, the estate cannot close until the Internal Revenue Service provides a “closing letter”. Obtaining this letter generally takes approximately one(1) year from the date the Form 706 is filed.
The Final Phase (approximately 2 months):
- Real Estate will be retitled to the beneficiaries.
- Final distributions will be made to the beneficiaries.
- Final tax returns are prepared and filed.
- Estate accounts are closed.
- Beneficiaries sign receipts of their “inheritance”.
- Closing pleadings and Final Accounting are prepared and filed.
- The Judge signs an Order of Discharge releasing the Personal Representative from any further duties as Personal Representative.