The Probate Process

Most states provide for a court probate proceeding following an individual's death to:

  • Oversee and approve distribution of the deceased's assets to beneficiaries named in the will and legal heirs.
  • Calculate and approve payment of state and federal estate and income taxes.
  • Resolve claims of creditors and disputes among heirs.

Generally, the size of the estate determines the formality of the required probate proceeding. State law determines the required probate process. Completing the probate process can require between 6 months and several years depending on the size of the estate and complexity of issues involved.

Role of the Personal Representative

The personal representative (known as executor in some states) is designated by the deceased's will or appointed by the probate court to administer the probate of the estate. The personal representative's primary responsibilities include:

  • Collecting and managing the assets and property of the deceased.
  • Paying taxes, claims, costs of probate, and debts of the deceased.
  • Distributing assets to creditors, beneficiaries and heirs.

Generally, the personal representative is reimbursed for expenses incurred in the probate process. The court approves the expenses incurred in the probate process and these expenses are payable from assets of the state. Most states provide that the personal representative can receive specified additional amounts of compensation which are also subject to court appeal.

Tax Issues

Estate and income tax issues are addressed in the probate process. It is recommended that these matters be reviewed by the personal representative with an attorney or accountant.

Generally, no estate taxes are due on assets disbursed to the deceased's surviving spouse. Also, currently, no federal estate tax is due on the first $600,000 of assets of the estate. Issues regarding estate, income and state inheritance taxes should be addressed with an attorney or accountant.

Settling the Estate

When the matters discussed above are documented and resolved to the satisfaction of the probate court, the court enters an order formally transferring property, settling claims and closing the estate of the deceased.