Probate is the procedure of settling the estate of a deceased person. The estate of one who has died consists of the property of that person upon death.
Q. Who is responsible for probating my estate?
A. If you have made a will, you have probably named such a person, called the Executor in that document. If you have no will, the court will appoint someone, usually the next-of-kin, to be the Administrator of your estate.
Q. What are the duties of my Executor?
A. The duties of the Executor are the same as those of the Administrator. They include the obligations to: a. Safeguard the estate´s property; b. Inventory the property; c. Submit accounts and inventories to the court as needed or required; d. Pay the debts and expenses (including funeral and burial expenses as well as costs of last illness or outstanding medical bills); e. Pay any federal or state death taxes; and f. Distribute the estate to those named in the will or, if no will exists, to the next-of-kin.
Q. Who pays for all this?
A. Your estate does. In general, your estate is responsible for all your debts, bills and expenses. These must be paid before any remaining assets in your estate can be given to your next-of-kin or your heirs under the will. Your Executor has no duty to pay these costs out of his or her own pocket and is not normally personally liable for your debts. Your Executor has the duty to release enough of your assets to allow the payment of expenses such as taxes, credit card balances and hospital bills.
Q. If I am appointed as someone´s Executor, do I get paid?
A. An Executor or Administrator can request the court to provide two types of compensation: a. Direct reimbursement for out-of-pocket expenses, such as postage stamps, bank charges and mileage; and b. Payment for services rendered as an Executor or Administrator unless the will directs otherwise. The amount of this latter payment will vary, of course, depending on the amount of work done, the time spent on the estate, the complexity of the work and the size of the estate.
Q. Does my Executor have to pay a fee or post a bond to settle my estate?
A. There are various expenses necessary to settle an estate. Fees must be paid to the court upon filing and closing the estate. A bond is sometimes required, especially if there are minor children or an out-of-state Executor or administrator involved. These costs are, of course, paid by the estate.
Q. Are my creditors notified of my death?
A. Your Executor/Administrator must place a legal notice in the newspaper for your creditors after the court has appointed him or her to handle your estate. The notice must: a. Give the name of the deceased and the name and address of the Executor or Administrator; b. Be published in the locality where the deceased had his or her home; and c. State that all claims of creditors must be made within a certain timeframe of publication of the notice. Once this is done, the publisher prepares an Affidavit of Publication and this is put in the court file. Any claims not presented to the Executor or Administrator within the designated period need not be paid under most state laws. Those claims which are valid and which are presented within the designated period, including debts and expenses known to the Executor or Administrator, must be paid out of the available funds in the estate.