Many times people are appointed executor under the terms of a will but have no idea how to start the process of probating the will and opening an administration. This article provides a brief overview of the process of probating a will and the initial steps in administering the estate.
Step 1: Meet With An Attorney
A lot of people don’t understand why an attorney is required to probate a will as they often hope to save a little money by trying to probate the will themselves. So let me explain.
When a will is admitted to probate for administration, it creates an estate that is a separate legal entity. The individual serving as executor cannot appear in court pro so because the estate is a separate legal entity. The executor would be appearing on behalf of the estate which would constitute the unauthorized practice of law.
Still people balk at having to pay attorneys fees. While I understand no one likes to spend money, the good news is that fees incurred administering the estate can be charged to the estate as a priority claim payable only behind funeral expenses and any family allowances.
So the first step is to meet with an attorney, or several attorneys, until you find an attorney that you feel comfortable working with.
Step 2: Evaluate the Estate and Need for Probate
Working with your attorney, you will review the known assets and liabilities of the deceased’s estate. You will also evaluate the family members, beneficiaries, and family dynamics that might impact probating the will. These factors will all serve to help you and your attorney decide whether the estate requires a full administration or whether the will could be admitted to probate as a Muniment of Title. You read more about probating a will as a Muniment of Title here.
You will also evaluate whether there is a need for emergency orders. For instance, you may need an order to access a safe deposit box where the will is located. Or maybe someone has possession of the will but refuses to turn it over to you the executor, or to present it to the probate court.
You will also evaluate whether there is a homestead or any exempt property that will require special care during the probate process.
Step 3: File an Application to Probate the Will
Your attorney will work with you to prepare an application to probate the will. The contents of the application will depend upon the type of will, the type of probate proceeding you are pursuing, and the manner in which the will was executed. You will also need to acquire information on the family, beneficiaries, and any documents necessary to support the application.
If there are ambiguous terms in the will or questions about whether someone qualifies to receive a devise under the will, you may also need to file a Determination of Heirship or Declaratory Judgment action to protect the executor from claims related to distributing property to someone who is not a beneficiary.
Step 4: Attend the Hearing to Admit the Will to Probate
The person appointed executor by the terms of the will must attend a hearing for the purpose of admitting the will to probate and issuing letters testamentary to the executor. This hearing usually occurs only a few weeks after the application is filed.
Depending upon the manner in which the will was executed, there may or may not be additional witnesses required to attend such as witnesses to the will or witnesses who can testify as to the testator’s handwriting. If the will is self-proved, the only witness may be the person appointed executor under the will.
The good news is that probate hearings are less formal than traditional court hearings – though it is still a court and you should treat it as such. Most hearings to admit a will to probate will only take about 5-10 minutes unless there are contested issues.
Step 5: After Admitting the Will to Probate There Are Several Statutory Requirements
The newly appointed executor has several obligations within the first 90 days of admitting the will to probate and the executor’s attorney will advise him or her on meeting those obligations.
For example, the executor is required to publish a notice to creditors and to provide notices to beneficiaries under the will. The executor will also have to prepare an inventory, appraisement, and list of claims or file an affidavit in lieu of the inventory, if allowed.
Step 6: Administer the Estate
This step also begins immediately after the will is admitted to probate. The executor is responsible for administering the estate by collecting all of the estate assets, paying or rejecting claims against the estate, handling any claims the estate may have against a third party (such as wrongful death), maintaining and preserving estate property for the benefit of the beneficiaries, and eventually distributing those assets to the devisees in accordance with the terms of the will.
The complexity of the administration will depend on the types of assets in the estate as well as whether the estate is administered independent of oversight form the probate court. A full discussion of administering an estate is a detailed and lengthy subject that is beyond the scope of this article.
If you were appointed to serve as executor of a will and would like to schedule a consultation, please visit my firm website for more information on scheduling a consultation.