Probate Process

Since the beginning of ownership, rules have existed to determine who received a deceased person’s assets. When a nomad died, there were rules within the group as to who received his spear and horse. Probate is today’s process to determine who gets your horse and spear. The Probate Process varies from state-to-state and county-to-county.

What is Probate?

Probate refers to the process where the state recognizes the executor or administrator as the estate’s official representative. When someone dies, ownership of all assets in that person’s name now pass to someone else. The Probate process provides the rules and oversight of that process. Getting the state’s recognition of the Will is the initial step. If there is no Will, then the process begins with the selection of the person who will serve as the estate’s Administrator. If the petitions for probate are accepted, the executor or administrator receives paperwork recognizing their authority. Probate has begun.

Where do I Probate the Will?

The location’s name differs from state-to-state. Pennsylvania has Registers of Will while New Jersey, New York, and Florida have Surrogates. Follow the link for a list of Pennsylvania Registers of Wills or a list of New Jersey Surrogates.

What if I am an Executor, but I Don’t Live Nearby?

Our experienced Probate Lawyers can arrange your being sworn in as executor near your home. In most cases, we can arrange for you never to need to come to the county at all. Because we focus our practice on Probate matters, we can help make the probate process as convenient as possible.

How Long Does the Probate Process Take?

There is no set time limit for an estate’s probate. As explained below, I often tell executors to tell the heirs that the estate will be open for at least a year, but we can often close the estate earlier (making the executor look good). The actual time the estate will be open will depend upon the estate’s assets and the taxes that need be paid. The Probate system is efficient, but there are certain steps over which you have no control. For example, certain tax returns need be filed, and the forms might not even be available until the year following the death. The estate might contain hard to sell assets, such as an art collection or real estate, so the estate will have to stay open until the assets are sold. For a more detailed estimate, feel free to contact us with the details of your estate. Here are a few common examples of tasks that will force an estate to stay open longer than others:

The deceased’s final income tax return. If the deceased lived even one day into the year, you might have to file his or her final income tax return. This will mean at a minimum filing a final 1040 to the IRS, a final state tax return, and perhaps other returns. You may not be able to file these returns until the year following the death.
Death Tax Returns. The assets’ location and value may require filing Federal or State death tax returns. For example, the Pennsylvania Inheritance Tax Return is due nine months after the date of death, and it can easily take that long to gather together the necessary information to complete the return. Once filed, it can take four months to get a response from the Pennsylvania Department of Revenue.
Inventory. Many states require the Executor file an Inventory. For example, in Pennsylvania, every executor and administrator must file an inventory to the Register of Wills within nine months from the date the will is filed.
The Estate’s Income Tax Return: If the estate creates income, then the estate must file a Form 1041 Return with the IRS and a state income tax return. Months may pass before receiving word that returns are accepted.
Sale of Real Estate: If the estate has real estate, preparing the property for sale, marketing the property and then closing the sale can take well over six months. Specialized property, such as commercial property or a farm can take even longer.
Creditor Claims: The estate’s creditors can bring their claims. If the executor releases the estate’s funds, and a legitimate creditor is discovered, the executor might be personally liable to the creditor. If the executor cannot recover estate funds from the beneficiaries, the executor pays the creditor. Most executors find it wise to hold the estate assets until the date for creditor claims has passed.

Typical Questions Asked About Probate:

What if someone owes me money at my death?

Your executor has the power to collect your assets. Your executor will have all the same powers to enforce your rights, including obtaining a court order.

What if the decedent left no Will?

If a resident dies without a will, the estate then passes through the intestacy laws. Learn more about the Pennsylvania Rules of Intestacy and the New Jersey Rules of Intestacy. The process if you die without a Will differs from if you have a Will. With an intestate estate, our Probate Lawyers file a different petition to have an Administrator named, rather than an executor. The rules that cover who can serve as Administrator are rather complex. If you have a relative who died without a Will, feel free to contact us. We will explain the process.

What are an Executor’s duties and responsibilities?

Once a probate petition is accepted, the executor or administrator’s job is to gather all the assets, pay creditors, satisfy all income/inheritance/estate taxes, and then distribute the remaining assets as the Will directs. Each estate is different, and the amount of work and responsibility may vary. The estate’s location will also affect the personal representative’s responsibility. For example, a Philadelphia estate must make certain reports to the Philadelphia Register of Wills, which are completely different for the reporting for a Palm Beach County estate’s reports to the Palm Beach County Surrogate. Strangely, even within a state, the various reporting standards may differ.

A Probate Attorney versed in the probate rules can advise the executor on these reports. In the end, before distributing any funds, the executor should submit a report of what has been done to the beneficiaries and obtain a complete release of liability. Without this release, the executor can be forced to return to court years later and account.

As Probate Attorneys, we regularly represent executors, administrators, and personal representatives and guide them through the probate process. We work with you to analyze your particular estate and advise you of what options exist to bring the estate to a close.

What is an Executor’s Accounting?

An executor’s accounting is the report of the executor’s financial actions from the date the executor began serving until the end. The accounting shows assets collected, what happened to those assets, any gain or losses on those assets and, in the Schedule of Distributions, the executor distribution plan. These accountings can either be informal or formal. Formal Accountings are filed with the court. Follow this link for more information about Accountings.

Where do I Probate a Pennsylvania Will?

The Will is registered with the Register of Wills of the county that the deceased was a resident. For example, if the deceased died a Philadelphia resident the will is probated with the Philadelphia Register of Wills. For your assistance, here is a list of Pennsylvania Registers of Wills.

Why should the Executor prepare an Accounting?

The executor should always obtain a release of liability from the heirs. The heirs, though, will often not wish to release the executor unless the executor can “account” for all the assets of the estate and explain all the expense incurred. To satisfy the heirs, the executor will need to provide an “accounting” of the assets and expenses. If the accounting satisfies the heirs, they will sign releases freeing the executor from liability.

Can the Beneficiaries force the Executor to prepare an accounting?

The heirs can force the executor to account by filing a Petition for Accounting.

What if the Executor cannot explain where assets went, or why expenses were incurred?

If the numbers do not add up, the executor might found personally responsible for any shortfall. The court can “surcharge” the executor for the difference.

I am an Executor, how can a Probate Attorney help me with an Accounting?

When filing an accounting, the Court requires the account to follow a specific format. Accounting submission is through a specific petition. Further, accountings and the accompanying petitions may vary from County to County. An experienced Probate Attorney who focuses in accountings is familiar with these differences. Providing the Court a Petition in the correct format prevents the judge finding it incomplete and ordering the Petition refilled.

I am a Beneficiary, how can a Probate Attorney help me with an Accounting?

At times an executor may refuse to provide a beneficiary with an acceptable accounting. The Court has created a system that allows a beneficiary to force the executor to provide an accounting. Our firm has been forcing executors to file Accountings for over 25 years and, once the accounting is obtained, our background in estate planning and tax allows us to help you interpret the accounting and search out discrepancies for your objections.

Are Wills public record?

Yes, once a Will is filed it is public record. For this reason, some clients have us draft Revocable Living Trusts. These trusts replace the Will and are not public record.

Can Co-Executors hire separate Probate Lawyers?

Generally, co-executors and co-administrators share the same attorney. Circumstances can make that arrangement unacceptable, and each party must retain his or her attorney.

Examples:

One co-executor may feel that the attorney they initially hired is favoring the other co-executor when it comes to handling assets or interpreting the will or trust.

The co-executors may find that they cannot agree on a matter, which must be decided by the court, and the first attorney is conflicted out or one party or the other just wishes to have a more experienced attorney represent their position.

Co-executors my find themselves bargaining with each other and only feel more comfortable having the advice of his or her attorney.

Whatever the reason, most wills and trusts allow each executor to retain his or her attorney who is paid for from the estate’s assets.

What is Probate in Pennsylvania?

Probate in Pennsylvania refers to the process where the Commonwealth of Pennsylvania recognizes the executor or administrator as the estate’s official representative. When someone dies, ownership of all assets in that person’s name will now pass to someone else. The Probate process provides the rules and oversight of that process. For a Pennsylvania estate, the initial step is to have the will recognized as valid by the Register of Wills of the county where the deceased was a resident. For example, if the deceased was a resident of Philadelphia County, the will is filed with the Philadelphia County Register of Wills. If there is no will, then the process begins with the selection of the person who will serve as the Administrator of the estate. If the Register of Wills accepts the petition for probate, then the paperwork is given to the executor or administrator authorizing them to represent the estate. Probate has begun.

What is an Estate Beneficiary?

An Estate Beneficiary is a person or entity entitled to receive benefits from the estate.

For example, if a Philadelphia resident died testate, and his will states that ½ his estate passed to his son and ½ to his church, the son and church would be the Beneficiaries of the Philadelphia Estate.

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If you have any questions about The Probate Process or any other estate administration topics, feel free to contact us to schedule a free consultation. For more than two decades Klenk Law has focused only on Estate Law. We’ve seen it all, and this experience allows us to explain complex estate law and planning techniques clearly and concisely. We make it easy for you to understand The Probate Process so you can make the best decisions for yourself and your family.

Probate and Estate Administration

Peter Klenk is the founding member of Klenk Law, a seven attorney boutique estate planning law firm. We serve clients in Pennsylvania, New Jersey, New York, Minnesota and Florida. Peter Klenk received his Masters in Taxation LL.M. from NYU Law School and his J.D. from the University of Minnesota Law School. He served his country in the Navy JAGC during Desert Storm. Easy to talk to, feel free to call Peter for an appointment. We will make the process as easy as possible!

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Probate Process: Everything You Need to Know