When it's time, a probate court will handle your estate. State law and court rules govern the process, so they can vary a little by jurisdiction. Having a legal representative might be helpful for an executor, but it's not necessary. If you feel strongly that your executor should have legal guidance, you can include this requirement in your will.
Appointment by Probate
A will typically appoints an executor, also known as a personal representative in some states, to carry out its terms and guide the estate through probate. The first step in the process involves petitioning the probate court for letters testamentary, which give your executor authority to act on behalf of the estate. The court will require that he submit a copy of your death certificate, as well as a copy of the will. If you die without a will, or the court determines your will is invalid because it does not meet statutory requirements, the probate court will appoint someone to handle your estate, called a personal representative or administrator. Your spouse or another relative can file a petition asking for appointment. The court will issue letters of administration, which serve the same purpose as letters testamentary.
Read More: Probate Account vs. Probate Inventory
Inventory and Notification
Your executor must make an inventory of your assets, including bank accounts, retirement accounts, real estate, life insurance, annuities and any other property of value. Gathering this information typically involves presenting the letters testamentary and a copy of the death certificate to account custodians, such as banks or brokers. Appraisals may be necessary to set values for assets, such as real estate. The executor must also make notification that your estate has entered probate to your creditors, beneficiaries and heirs -- next of kin who would stand to inherit if you had not left a will -- even if they're not mentioned in the document. Another important task is to file tax returns, both for the decedent as well as for the estate, if necessary. Before your beneficiaries can receive their inheritances, your executor must settle all your debts and pay any taxes due.
If your debts exceed the cash available to your estate, the executor can liquidate property, such as cars and homes, to settle the debts. In some states, this requires court approval first. After the executor handles these obligations, he can distribute assets to your beneficiaries according to the instructions you left in your will. Any disputes that arise must be submitted to the probate court for a decision.
Not all states require a full probate court procedure. For example, California allows your spouse to petition the court to "set aside" the estate if you die owning property not exceeding $20,000 in value. If the petition is approved, there is no probate court procedure, but next of kin may still have the responsibility of paying your debts and taxes.
Founder/president of the innovative reference publisher The Archive LLC, Tom Streissguth has been a self-employed business owner, independent bookseller and freelance author in the school/library market. Holding a bachelor's degree from Yale, Streissguth has published more than 100 works of history, biography, current affairs and geography for young readers.