How do I start Probate?
Sarasota Probate Attroney
If you have recently lost a loved one and have been named in the Will as
the Personal Representative, you will be responsible for settling the
affairs of the decedent through Probate. Most people in this position
have no idea what this means or how or when to start the process.
To start the Probate process, the Personal Representative should:
- Locate the original will
- Obtain a death certificate
- Gather bank statements and evidence of all assets owned by the decedent
- Gather all invoices and statements for all debts of the decedent
- Gather contact information for all potential heirs including those named
in the will and those related to the decedent by blood or marriage (spouse,
children, grandchildren, etc.)
- Hire an attorney to assist in the Probate process
Although there is no deadline to file a Probate after the decedent has
passed, the Personal Representative has a fiduciary responsibility to
both the creditors of the decedent and the beneficiaries of the estate.
Failure to begin the Probate process in a timely fashion may be seen as
a breach of fiduciary if the value of assets of the decedent’s estate
are diminished due to delay or if any of the decedent’s creditors
take action against the assets of the estate that could have been avoided
by prompt action.
The Probate Process in a Nutshell
The probate process typically goes a following:
- File the original will with the court
- Prepare and file the petition for administration
- The judge signs and issues the “Letters of Administration”
- The Personal Representative’s attorney will send copies to parties
that would be involved or interested in the estate.
- By certified mail, the beneficiaries will be sent copies of a Notice of
Administration (that is, if they have not already filed a waiver of their
right to receive notices of the probate process.)
One of the main objectives of Probate is to pay the decedent's debts
with the assets of their estate. The most common of the types of creditors
in Probate are the decedent’s funeral expenses, final hospital bill,
mortgage company, credit card companies and any miscellaneous debts. A
Notice to Creditors must be sent to any party that the Personal Representative
knows about – or someone called a “reasonably ascertainable
creditor”. Any unknown creditors are provided notice of the administration
of the estate through the publication of legal notice in the newspaper.
Upon receiving notice from the Personal Representative or within three
months of the first publication of the notice of administration in the
newspaper, any creditor seeking payment from the estate is required to
file a claim in the Probate proceeding. The court will send the Personal
Representative’s attorney a copy of all claims filed so that the
claim can be paid or contested, if determined to be invalid. Any claims
not filed during this time period will be, in most cases, barred and do
not need to be paid by the Personal Representative.
The Personal Representative must also identify and secure the assets of
the decedent. A list of all assets in the Probate estate, also known as
the Inventory, is filed with the court. These assets must also be valued
in the Inventory, often requiring the hiring of an appraiser or other
The Personal Representative will also be responsible for filing tax returns
for the estate. Personal representatives will have to arrange for the
filing of an income tax return for the decedent for the year of the decedents
death and for subsequent years if the estate earns income on the estate
assets. Larger estates will also require the filing of an estate tax return.
The Personal Representative also has the duty to manage estate assets until
they are sold or distributed to beneficiaries which often requires the
payment of ongoing mortgage payments, utilities, and other expenses of
property owned by the decedent.
Once all of the assets are gathered and the claims of all creditors filed,
the Personal Representative can begin the process of liquidating the estate.
First, all cost of the Probate proceeding and the administration of the
estate are satisfied, including payment to the Personal Representative,
the Personal Representative’s attorney and any experts hired by
the Personal Representative. Then, all claims are paid from non-exempt
assets. Thereafter, the remaining assets are distributed to the beneficiaries
named in the will.
After all creditors’ claims are paid and assets distributed to the
beneficiaries, the Personal Representative will file a Formal Accounting
and seek an order of the Court that closes the Probate proceeding to discharge
the Personal Representative and release him or her from any further duties.
It will take at least 3 months to probate a decedent’s estate but
it is reasonable to expect that the administration of an estate will take
approximately 6 months or longer if assets must be sold or there are challenges
to the validity of a creditor’s claim or to the will itself.
If you have been named as the Personal Representative of an Estate, The
Edwards Law Firm, PL is here to represent you to timely and efficiently
administer the estate. Contact our experienced team now to see the difference
we can make for you.
Consultations are available – submit any time.