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Estate Planning | Probate

Who is Responsible for Handling Probate?

7 min read
Francesca Toledo, J.D.

by Francesca Toledo, J.D.

The passing of a loved one brings about many feelings, including sadness and devastation. You may also feel confused, wondering what the next steps are regarding their property and assets.

An executor is responsible for handling a decedent’s probate. They may handle the probate alone, or with the help of a qualified probate attorney.

What Is Probate?

Probate refers to the process of distributing a person’s property and belongings after they have passed away. The probate process can be lengthy and typically involves plenty of paperwork and the occasional court visit. 

There are certain goals to achieve during the probate process. These include:

  • Determining the executor of the estate 
  • Providing the court with the decedent’s will, if one exists
  • Taking inventory of all property in the decedent’s name
  • Paying off debts
  • Identifying heirs and beneficiaries
  • Distributing all property properly

Probate becomes necessary when the decedent did not have a solid estate plan. Often, when there is an estate plan in place, the probate process can be avoided entirely.

What Is an Executor and How Is One Appointed?

An executor, or personal representative, is the individual in charge of the decedent’s estate. They will be responsible for the tasks listed above, as well as any other details needed to tie up loose ends. An executor is typically a family member, but can also be a lawyer or accountant.

If the decedent created a will, the name of the executor is usually listed in the will. If the decedent dies intestate, or without a will, the probate court judge will appoint one. Generally, the judge will choose a person close to the decedent willing to take on the responsibility, including a parent, spouse, child, or other heir. 

Executors play the most important role in probate. They serve as the point person for every task to be completed and close the probate case. 

What Does the Executor Do?

An executor is responsible for everything during the probate process, along with the help of an attorney, if they choose to have one. Some of the most important tasks the executor must perform include:

  • Finding and filing the decedent’s will with the probate court, if the decedent had one
  • Notifying banks and other creditors of the decedent’s passing
  • Notifying heirs and beneficiaries
  • Setting up a special bank account with which the executor will pay the decedent’s remaining bills and obligations
  • Filing an inventory and appraisement with the court, which lists assets and liabilities
  • Maintaining any property until the executor can dispose of it
  • Ensuring all property goes to its intended beneficiaries

The executor is in charge of the probate from beginning to end.

Can a Beneficiary Also Be the Executor?

Yes. In fact, it is very common for executors to also be beneficiaries. There is generally no conflict of interest. Examples of beneficiaries that can also be appointed executors include spouses and children.

What if the Named Executor Is Deceased or Unable To Take On the Responsibility?

When a decedent names an executor in their will, they will customarily name others if the first choice is unavailable for whatever reason. If this is not the case, or all named potential executors are unavailable or unwilling to perform, the probate court judge will appoint an executor.

Is the Named Executor Forced to Serve?

No. An appointed executor may decline the responsibility. Additionally, once an executor has already started their duties, they can resign at any point during the probate. Being an executor is a big responsibility, one not everyone is well equipped to handle.

Does the Executor of a Probate Case Receive Compensation?

Executors are entitled to compensation for the work they put into handling the estate of the decedent. The decedent’s will may provide terms for payment, or state law may dictate how much an executor can receive. Some states, for example, allow an executor to receive a percentage of the estate or a percentage of transactions.

To determine whether you can receive compensation for your work as executor, consult with a probate attorney in your state.

What Does the Probate Process Look Like?

The probate process will vary by state, but generally, it includes the following steps:

  • Requesting appointment as executor: Even if you have been named executor in the decedent’s will, you will still have to petition the court to be appointed as such. You do this by filing an application, as well as the decedent’s will and death certificate. Your petition will include vital information about the decedent, their beneficiaries, and other pertinent information. Additionally, you may have to send each individual beneficiary formal notice of the decedent’s passing. If they wish to object to your appointment, they can request a hearing with the court to do so.
  • The executor is appointed: Once the court approves your petition and you are appointed executor, you can now proceed with handling the decedent’s estate. The court provides a certificate of appointment, giving you the legal right to handle the decedent’s accounts, debts, property, and the like. 
  • Proceed with handling the estate: Depending on the state, certain steps must be taken, including filing an inventory and appraisement with the court notifying them of the decedent’s property and its value. You will also need to provide notice to creditors who wish to settle debts the decedent had. The longest part of probate is usually the creditor period—the time many states must leave the probate open to give creditors a chance to request payment from the estate.
  • Distribute property: The executor will need to handle the distribution of the property. If the decedent had a will, the executor may follow the decedent’s wishes as detailed in the will. If the decedent died intestate, the court may intervene to help determine who gets what in the estate. 
  • The executor pays taxes: The executor must file tax returns for the estate. This can be a tricky step, and the executor may require help from a lawyer or accountant. 
  • Close the estate: Once all debts have been settled, property has been disposed of, taxes have been paid, and the creditor period has passed, the executor can close the estate. The executor will file a request to close the estate with the probate court, and when granted, their duties will be completed.

Does All Property Have To Go through Probate?

No, not all property is subject to probate. Property that is typically subject to probate is that which the decedent did not dispose of in a will or trust, or property that was in the decedent’s name alone. 

This depends on your state’s laws. Some states require probate even if the decedent had a will. Discuss your situation with a probate attorney to get answers to your questions and legal advice on how to proceed with your probate case.

Do I Need an Attorney To Help Handle a Probate Case?

Executors are not legally required to have an attorney help them with their case. However, in most cases, it is beneficial to have the assistance of an attorney, as probate cases can be complex and confusing. 

Depending on your state’s laws, the probate process may take quite some time and require many steps in disposing of property and assets and closing the probate. If you have never handled a probate case before, it is common to feel lost and unsure. Probate courts often provide some level of help, but they are not allowed to give legal advice.

It is in your best interest to consult with a probate attorney to help handle your case. Having an experienced lawyer on your side can mean a smooth probate process and quicker resolution.

Traditional probate attorneys usually require a retainer to begin and then charge hourly for every hour they dedicate to your case. This can quickly add up and cost quite a bit.

An unbundled attorney may be exactly what you need to help handle your probate case. An unbundled lawyer is there to assist you with the most important parts of your case while you handle everything else. Compared to a traditional attorney, an unbundled lawyer can provide the same competent legal assistance without the steep price tag. Unbundled legal services start at $500-$1,500.

Unbundled Legal Help is dedicated to helping people have access to affordable legal help. We pride ourselves on working with the best and most skillful lawyers. If you’re looking for an unbundled lawyer, we can help connect you.

If you need help handling a probate case, you are not alone. Contact Unbundled Legal Help today, and we’ll match you with a local unbundled attorney from our network.

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