How to File a Will for Probate?
Probate is part of the legal process of settling an estate and distributing belongings and accounts when a person dies. The dead person’s will should name an executor who handles the assets belonging to the estate. If there is no executor named, the probate court will appoint an appropriate person, usually a close family member.
Rather than the dramatic scenes shown on television and in movies, settling an estate is generally a matter of mundane paperwork: ensuring that the bills owed by the estate are paid, taxes filed, and accounts closed. Sometimes this is as simple as proving that accounts were appropriately transferred while other times it may require assembling documents from marriage certificates to birth certificates and property deeds.
Sorting out which accounts and possessions do not have to be probated is part of the task. While it is always recommended to check probate requirements in the jurisdiction where the deceased lived and owned property, 16 states have adopted the Uniform Probate Code to standardize the process.
Steps to probating a will are generally as follows (check with the local jurisdiction):
- notify the probate court with jurisdiction that the person has died within a specific time period (usually 30 days) by presenting an official death certificate;
- provide the deceased person’s last will and testament to the court along with the necessary petition form to start the probate process;
- repeat this process in each jurisdiction where physical property was owned;
- post a bond if required by the state with jurisdiction, and hire an estate attorney if necessary;
- determine if the estate qualifies for a simplified, small, or no probate process due to the total amount of assets involved;
- enumerate the estate’s assets and associated values and file with the court;
- identify heirs and notify them of the timeline;
- advertise in the newspaper as required by the court (so anyone who is owed money by the estate can make a claim);
- compile bills and other debts owed by the estate;
- exclude trusts and accounts that were held jointly or for which there is a beneficiary;
- pay bills and file taxes as required, and
- distribute assets to heirs and get probate discharge from court.
Getting to discharge
An estate is considered settled or discharged when all outstanding debts have been paid, including taxes, and assets have been distributed according to the will left by the deceased individual. If no will was left, the executor (named by the court) is still likely to be named from the dead person’s family members.
The executor is responsible for seeing the process through and may hire an attorney for help, with payment coming from the estate. By submitting the deceased’s will and applying for probate, the executor will receive an official designation (document) from the court that allows him to act on behalf of the estate, whether having assets appraised, paying taxes, or selling assets.
If a person has a small estate with few assets it is possible in most jurisdictions for probate to be a simplified process – or not at all. States set thresholds for the minimum estate value that triggers the probate process, such as New York’s $30,000 limit and California’s $150,000 valuation (with limits). Ohio and other states also allow a “transfer on death” designation that allows an heir to claim property from the estate without the formal probate process.
In other situations, a forward thinking person with assets to protect from estate taxes will establish a legal irrevocable trust that, upon the death of the owner, is handled by trustees outside of the probate court. Such trusts allow estates, often those including homes as well as intangible assets such as stocks and bonds, to avoid taxes associated with probate because these legal tools include their own instructions for asset distribution.
Tangible vs. intangible assets
Once the executor has enumerated the estate’s assets and determined which will be probated, he or she must establish values for those assets. Tangible assets are those items that can be sold, such as buildings, vehicles, and personal belongings. These items are appraised, often by more than one individual or company, and the value established.
Intangible assets are stocks, bonds, copyrights, patents, intellectual property, and other belongings that do not necessarily have a physical presence. Each jurisdiction may have its own rules for these items, which require determining the account’s value at the time of the individual’s death. Some consider them tangible and tax them as such because an account can be converted to cash and a patent sold and liquidated. Others allow the items to be transferred directly as designated in the will.