The first step in the probate process is the filing of an application with the probate court in the county where the decedent lived. You'll ask the court to appoint you as the "personal representative." This puts you in charge of taking inventory of the assets, notifying creditors, paying debts and distributing the assets to the appropriate beneficiaries. Final accounting and distribution of the assets is the last step in the process. You'll need to file a petition with the probate court and request to close the estate. The exact procedure varies among states, but the general requirements are the same.
How It Works
The personal representative appointed by the probate court is responsible for filing the petition for final accounting and distribution. The official name can vary, depending on the state. For example, in Florida it's called a petition for final discharge and accounting.
Final accounting is when the personal representative lets the court know what assets were in the estate, what creditors were paid and how she is going to distribute the remaining assets. This petition must be filed before beneficiaries can receive their share of the assets and the estate is closed. Once the petition is filed and approved, the personal representative divides the assets as determined in the last will and testament or by state succession law, if there is no will.
Before you can file the petition, you must administer the estate. Generally, the process requires you to notify creditors that the decedent has passed away. You may also need to publish a notice in the local newspaper. State laws dictate how long you'll need to keep the estate open. In some cases, it's as little as three months; but in other states, it can be a year or more. You must pay creditors before beneficiaries can receive any assets. If the estate doesn't have enough assets to pay the creditors, it's considered an insolvent estate. When assets are limited, state law determines the order in which debts are paid.
Typically, a petition must contain certain elements, such as:
- a statement from the personal representative declaring that he has administered the estate
- proof of all claims paid from the estate
- proof of taxes paid or proof that provisions were made for taxes
- proof of compensation paid to the personal representative, or a statement indicating the amount the representative will receive
- the property remaining in the estate
- a plan detailing all distributions
- funds remaining in the estate for the personal representative to pay expenses related to distributing assets and closing the estate
To ensure you have the correct petition form, you'll need to obtain it directly from the probate court. Some counties use a customized form rather than a standard state-specific form. Visit your local probate court in person or check the website for a blank petition to complete.