Probate is the court-supervised process of verifying a last will and testament if the deceased made one. The process includes:
- locating and determining the value of the person’s assets
- paying their final bills and taxes
- distributing the remainder of the estate to their rightful beneficiaries
Appointing the Personal Representative (Executor)
The judge will appoint a personal representative, sometimes called an executor or administrator. This individual will oversee the probate process and settle the estate.
The decedent’s choice for a personal representative is typically included in the will. The court will appoint next of kin if they didn’t leave a will—typically the surviving spouse or an adult child. This individual isn’t obligated to serve. They can decline and the court will then appoint someone else.
An intestate estate is one where the decedent did not leave a valid will—either they never made one or the will is not accepted as valid by the probate court due to an error in the document or because an heir successfully contested it.
The most significant difference is that in the absence of a will that makes their wishes known, the decedent’s property will pass to the closest relatives in an order determined by state law.
Role of Personal Representative
After death, the Personal Representative has a lot to consider and manage. The Personal Representative is responsible for closing out the estate and carrying out the will of the deceased. If you’re named the Personal Representative (also called an Executor), you’ll have many details to manage.
Sometimes, there is confusion about the roles of a Personal Representative versus the Power of Attorney. The primary difference between the Personal Representative (“PR”) and the person appointed under a power of attorney the attorney in fact (the “POA”) is that the PR is administering the estate after the person has passed away and the POA is caring for the person while they are incapacitated, but still living.
Personal Representative Checklist
1. Obtain a Copy of the Death Certificate
The first responsibility of an Personal Representative is to obtain copies of the death certificate. The funeral home will provide the death certificate; ask for multiple copies. You’ll need to provide a copy of the death certificate for a number of tasks, including filing life insurance claims and tax returns, accessing financial accounts and notifying organizations such as the Social Security Administration of the person’s death.
2. Make Funeral Arrangements
The will may include instructions for the funeral arrangements. As Personal Representative, these responsibilities could include communicating with the funeral home to ensure the wishes of the deceased are carried out.
3. File the Will in Probate Court
A copy of the will needs to be filed in probate court. In some cases, assets can pass to heirs without probate (or via a streamlined probate process), but the law in most states still requires filing the will in probate court.
4. Locate the Assets and Manage Distribution
As Personal Representative, it’s your responsibility to control the assets until the estate is settled. You may have to make decisions about which assets to sell and which to distribute to heirs. If the deceased left a will, you’ll be responsible for contacting those named in the will to inform them about their inheritance and ensure they receive the designated property. Without a will, state law will determine who receives distributions from the estate.
Life insurance and certain retirement accounts with beneficiary designations pass directly to beneficiaries so they will not be subject to the probate process.
5. Communicate With Appropriate Contacts
In addition to working with your estate administration attorney, you may also need the support of the accountant, financial advisor, insurance agent and others to access accounts and to file all of the necessary paperwork. The person’s credit card company, bank and mortgage company all need to be notified about the death. If the deceased was collecting Social Security, Medicare or veterans’ benefits, the Social Security Administration and Department of Veterans Affairs will also need to be notified. You may need to provide the death certificate to close those accounts.
6. Set Up an Estate Account
The estate account will hold all of the financial assets owed to the deceased, including paychecks, dividend payments and tax refunds. All payments (e.g., for burial expenses, to the IRS, to creditors) will also be paid out of this account.
7. Pay Ongoing Expenses and Debts
Paying ongoing bills isn’t mapped out in a will, so it’s something you may miss if it’s not part of your Personal Representative duties checklist. Until the estate is settled, you’ll need to continue paying the mortgage, utility bills, insurance premiums and other day-to-day expenses. In the process of reconciling the estate, you’ll communicate with creditors about outstanding debts and decide how those will be settled. All debts will need to be paid before any assets can be disbursed to heirs.
8. Preparing and Filing Tax Returns
Finally, an income tax return must be filed for the period from the first date of the tax year until the date of death. Your gross taxable estate is the total value of all you own: both probate assets and property that passes directly to a living beneficiary. The estate tax exemption is subtracted from this total value and the tax is due on the balance.
It Takes the Right Person
Serving as a personal representative can be a huge responsibility, and it’s often a time-consuming burden. You should be able to choose the right person or institution for the job with the help of your estate planning attorney.
Disclaimer: This article is not intended to be construed as legal advice. Prior to making any significant decisions relative to its content, you should consider seeking the advice of a licensed attorney that specializes in Estate Law for your particular state.
©Surprenant & Beneski, P.C. 35 Arnold Street, New Bedford, MA 02740, 336 South Street, Hyannis MA 02601 and 45 Bristol Drive, Easton MA 02375. This article is for illustration purposes only. This handout does not constitute legal advice. There is no attorney/client relationship created with Surprenant & Beneski, P.C. by this article. DO NOT make decisions based upon information in this handout. Every family is unique and legal advice can only be given after an individual consultation with an elder law attorney. Any decisions made without proper legal advice may cause significant legal and financial problems.