When someone dies with assets, those assets must be distributed through a process called probate. A court-appointed personal representative of the estate (called either the executor or administrator, depending upon whether a will exists) will administer the estate. The administration process begins by opening a probate estate with the county.
What Is Probate?
Probate is the legal process by which a deceased person’s assets are categorized and distributed to his heirs and creditors. When a person dies with assets, a personal representative of the decedent (either the executor or a person who wishes to become the administrator) should open a probate estate in the county of the decedent’s residence at the time of his death.
The assets and liabilities of the decedent at the time of death are what make up the decedent’s estate. Once the estate is opened, the assets must be distributed, and liabilities must be paid.
Executor or Administrator of the Estate
If the decedent died with a will, the will likely names an executor. The executor is the person who is responsible for administering the estate. The executor will need to open the probate case. Even though the will designates that person, he may still have to petition the court to be named executor, so other people have the opportunity to challenge the designation.
If the person dies without a will, or if the will is silent as to who will administer it, then someone will have to step forward and open the estate, then petition to be appointed administrator.
Executor and administrator are two names for the same job, the person who is the personal representative of the estate. Although one was appointed by the decedent herself and the other applied for the position, they have the same responsibilities.
Read More: Estate Administrator Duties
Setting Up a Probate Case
The personal representative can begin by filing a petition or a request with the register of wills in the county where the decedent had her last residence. The register of wills for each county may have different requirements, but generally, you must present a copy of the will along with a death certificate. The register of wills may then issue letters testamentary or letters of administration to open the estate.
The executor named in the will must then petition the court to be named the official executor. If there is no will, then someone must petition to be named administrator. Once an executor or administrator is appointed, he will begin administering the estate.
Taking Stock of Assets and Liabilities
Initially, the appointed personal representative (either executor or administrator) must determine the decedent’s assets and liabilities. Assets include anything the decedent owned, whether tangible or intangible, including furnishings, real estate, vehicles, accounts, investments and intellectual property. The personal representative must assess the value of each asset. The representative is required to open a separate bank account for the estate if the assets are being sold instead of distributed as-is.
The representative also must determine the decedent’s creditors and figure out if any of the assets have liens on them. The decedent’s creditors are paid from the assets before they are distributed to the heirs.
Hiring Estate Professionals
The personal representative is also responsible for hiring professionals, such as accountants and lawyers, to manage the estate. Estates may be subject to taxation depending upon their size, and probate cases that involve disputes among the beneficiaries can become complicated. In these types of cases, professionals can assist the personal representative and ensure everything is done properly.
Notifying Creditors and Heirs
The personal representative is responsible for notifying all the creditors and beneficiaries named in the will as well as any heirs not named that the decedent has died and the estate has been opened. Local rules may require notice by publication, mail or both.
When someone dies, a personal representative should file the appropriate papers with the register of wills or with the probate court to open an estate.
Rebecca K. McDowell is a creditors' rights attorney with a special focus on bankruptcy and insolvency. She has a B.A. in English from Albion College and a J.D. from Wayne State University Law School. She has written legal articles for Nolo and the Bankruptcy Site.