WHO’S AFRAID OF PROBATE?

This article describes the executor’s duties. Don’t attempt to handle an estate without the help of an experienced lawyer.

I recently attended Probate 101, an excellent 3 hour seminar offered by the Memphis Bar Association Probate/Estate Planning Law Section, of which I have been a member.  With that seminar I received a list of tasks that the Executor or the lawyer must perform. See this Probate To Do List to get some idea of the job of the Executor and his attorney.

 (To find out how to relieve your family from spending the time and money needed to handle the Probate Court process after your death, check out Wis’s Revocable Living Trust Package.\

As an Executor one must step into the shoes and the life of the deceased person and unwind that life, to find, protect and manage the Decedent’s property and dispose of it according to the decedent’s wishes. To Probate  means to prove and you will ask the Probate Court to approve the Will and appoint you as Executor. The lawyer must prepare a petition to the Probate Court and a desired Order for the Court to sign approving the Will and the Executor. You will testify as to the validity of the will. The Court will award “letters testamentary” to the Executor, to establish that he has authority over the property in the estate.

The State of Tennessee and the Court will take steps to protect every one who might be affected by the estate, creditors, people named in the Will, Tenncare, everyone. Within 60 days the Executor is required to notify all of them and to provide sworn affidavits to the Court proving that he did so. Several of these affidavits must be provide to the Court within 60 days after the initial Court appearance.  Probate requires several appearances in court and there will be one ending the estate.

THe estate must open estate bank accounts so it can manage proceeds. The Executor must intercept mail and handle it. He must collect income. He must locate all estate assets, including brokerage and bank accounts, personal property and so on. He must collect life insurance payable to the estate. He must protect all estate assets and insure them if appropriate. H e must collect debts owed the decedent. He must determine whether to distribute assets to beneficiaries ot to sell them and collect the proceeds for the residual beneficiaries. in order to sell assets, he will need death certificates.

.death certificates

Sell estate property not given by will. To sell investments, provide

Close charge accounts, club memberships, subscriptions.

Identify estate debts, mortgages, taxes.

The Executor must pay, fight or settle creditors’ claims and get receipts proving they are paid.

Ultimately the Executir must deal with beneficiaries and find out what personal items they want, distribute specific bequests to them and get receipts proving they are satisfied.

Taxwise he estate is a taxable being and the Executor must obtain a tax ID number and must file tax returns for the decedent (and his surviving spouse) and for the estate the Executor must prepare and file timely Federal income tax for the decedent and the estate if required.

Once everything is done, the Executor must distribute the rest of estate to beneficiaries and get receipts from them. get Tenncare release. Unless an accounting is waived, the Executor must prepare an exhaustive accounting, showing all assets with with the estate started, all transactions in all accounts and a balanced bottom line.

Make final settlement. The Executor will then provide a petition to the Probate Court showing that all has been done and asking that the Court approve the closing of the estate in an Order prepared by the attorney.

GO TO COURT – CLOSE ESTATE

Find a complete treatment of this process in the 3-volume treatise, Pritchard on Wills and administration of Estates (Matthew Bender – updated).

 

About Wis Laughlin

I help clients with tax preparation and IRS representation, estate planning, and complex contracts, including LLC's. As a former IRS tax attorney in their National Office. Law.com picked Wis in 2017 and several prior years as one of the Top Tax and Estate Lawyers in Tennessee. I am your advocate, not your accountant. I don't tell you what you can't do. I show you how to do it.
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