Probate is the process of proving a decedent's will. The executor named in the will, also known as the personal representative, must bring it along with a certified copy of the death certificate to the probate court in the decedent's home county. While laws vary by state, failing to file a will within a certain time frame subjects the executor to legal action. Beneficiaries and creditors may also file petitions in court if the executor does not turn in probate papers on time.
Documents required for probate vary according to the state and the estate. Besides the will and the certified death certificate, the executor must file the decedent's final income tax returns, as well as estate tax returns, paying any taxes due. He must apply to the Internal Revenue Service for an employer identification number for the estate. If the decedent died intestate, or without a will, the personal representative must provide the court with a list of the decedent's heirs according to the state's laws of intestate succession.
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Among the personal representative's duties is filing an inventory of all of the decedent's assets titled solely in his name and the fair market value at the date of death. This inventory is filed with the probate court, with copies sent to designated beneficiaries, and must be notarized before submission. The inventory must be completed within a certain time period, which is usually three months. If the executor fails to file the inventory, he may ask the court for an extension if he can prove there is a good reason for the delay.
The personal representative must file a final accounting of the estate for probate court approval before remaining assets may be distributed to designated beneficiaries. This accounting includes estate checking account statements, invoices, receipts, bills of sale for personal property belonging to the estate, estate tax returns and other documentation relating to the particular estate. While the probate process can be time-consuming, if the estate is not settled within a reasonable time frame, any interested parties, such as beneficiaries or creditors, may file a complaint with the court.
Penalties for the Executor
If the executor fails to perform his duties, the court may replace him or not permit compensation, which is generally a percentage of estate assets. The executor may be liable for any damages he caused. Among the reasons an executor is held liable is improper management of estate assets; failing to collect funds due to the estate; not filing tax returns by the due dates; distributing assets before payment of all creditors, or inappropriately distributing assets.
A graduate of New York University, Jane Meggitt writes regularly for various legal blogs. Her work has appeared in LegalZoom, USA Today and many other publications.