After opening the probate case with the court, the personal representative inventories and collects the decedent's property. Next, he pays any debts and taxes, including estate tax in the United States, if the estate is taxable at the federal or state level. Finally, he distributes the remaining property to the beneficiaries, either as instructed in the will, or under the intestacy laws of the state.
The personal representative must understand and abide by the fiduciary duties, such as a duty to keep money in interest bearing account and to treat all beneficiaries equally. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.
Section 2 of the Wills Act 1959[13] defines a will as a ‘declaration intended to have legal effect of the intentions of a testator with respect to his property or other matters which he desires to be carried into effect after his death and includes a testament, a codicil and an appointment by will or by writing in the nature of a will in exercise of a power and also a disposition by will or testament of the guardianship, custody and tuition of any child’.[13]
If the decedent died with a will, the will usually names an executor (personal representative), who carries out the instructions laid out in the will. The executor marshals the decedent's assets. If there is no will, or if the will does not name an executor, the probate court can appoint one. Traditionally, the representative of an intestate estate is called an administrator. If the decedent died with a will, but only a copy of the will can be located, many states allow the copy to be probated, subject to the rebuttable presumption that the testator destroyed the will before death.
For estates that do not qualify for simplified proceedings, a court having jurisdiction of the decedent's estate (a probate court) supervises the probate process to ensure administration and disposition of the decedent's property is conducted in accord with the law of that jurisdiction, and in a manner consistent with decedent's intent as manifested in his will. Distribution of certain estate assets may require selling assets, including real estate.
The probate court also has jurisdiction to hear lawsuits appertaining to or incident to an estate of a decedent or ward and actions by or against a personal representative of an estate of a decedent or ward. It is common for the court to hear any type of civil litgation, including personal injury, property damage, breach of fiduciary duty and family law. The probate courts are charged with the responsibility of independently maintaining contact with every person under a guardianship each year. This is done through court visitor programs developed and maintained by each court.
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Most estates in the United States include property that is subject to probate proceedings.[15] If the property of an estate is not automatically devised to a surviving spouse or heir through principles of joint ownership or survivorship, or otherwise by operation of law, and was not transferred to a trust during the decedent's lifetime, it is generally necessary to "probate the estate", whether or not the decedent had a valid will. For example, life insurance and retirement accounts with properly completed beneficiary designations should avoid probate, as will most bank accounts titled jointly or made payable on death.[36]
Either a family attorney or an estate, or wills, attorney can help you prepare a living will, either as part of your general estate planning or as an individual document. The cost typically ranges from $250 to $500, depending on your attorney’s fees; some charge by the hour, while others have a flat rate for writing a living will. Some states require living wills to be notarized, which adds an average of $5 to $15. In a living will — also called an advanced healthcare directive — you specify whether you want to be kept on life support if you become terminally ill or lapse into a persistent vegetative state. You can also answer other important questions in a living will like your preferences for tube feeding, artificial hydration and pain medication in situations when you cannot communicate your wishes on your own.
Because life insurance proceeds generally are not taxed for U.S. Federal income tax purposes, a life insurance trust could be used to pay estate taxes. However, if the decedent holds any incidents of ownership like the ability to remove or change a beneficiary, the proceeds will be treated as part of his estate and will generally be subject to the U.S. Federal estate tax. For this reason, the trust vehicle is used to own the life insurance policy. The trust must be irrevocable to avoid taxation of the life insurance proceeds.
Beyond the absence of a challenge, there is also the question of probate administration, either Independent Administration or Dependent Administration. An executor can request Independent Administration if the will says they can ask for this. If the will says nothing about administration, all the beneficiaries agree that Independent Administration is the proper course of action. In this case, the executor does not have to post bond and no court supervision is required for the executor to take the steps needed to settle the estate. However, the executor must still publish notice of the probate (to inform potential creditors of the probate) and file an inventory of the estate’s assets.
Believe it or not, you have an estate. In fact, nearly everyone does. To name a few examples, your estate includes your car, home, bank accounts, life insurance, and investments—and no matter how large or how modest—it is all part of your estate. But estate planning goes beyond your possessions: it is the steps people take during their lives to strategize and prepare for incapacity, illness, and passing on. Estate planning is ultimately taking care of your loved ones by taking care of yourself.
