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:

  1. Locate the original will
  2. Obtain a death certificate
  3. Gather bank statements and evidence of all assets owned by the decedent
  4. Gather all invoices and statements for all debts of the decedent
  5. 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.)
  6. 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 valuation expert.

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.