Maroto & Associates

When you think about it, probate is not difficult to understand. At your death, your assets need to be distributed to your heirs, your debts need to be paid, and any loose ends need to be looked after. Obviously, you can’t sign the deeds, write the checks, or handle your business affairs after you are gone. The probate court takes over those duties.

The following are the five basic steps to settling an estate through death probate:

Step One: Recording the Will and Gathering Material
The original will must be submitted to the court, along with a filing fee, to begin the probate process. One of the probate court’s first jobs is to approve or appoint someone to handle the affairs of the estate. This person is called the executor, administrator or personal representative, depending upon the rules of the state and whether the decedent dies with or without a will. In Pennsylvania, this individual is referred to as a personal representative if the decedent dies without a will and an executor if the decedent has a will when he or she dies. For our purposes, we will refer to this person as the personal representative. Generally, the first thing the personal representative does is hire an experienced probate attorney. Although having an attorney is not always a legal requirement, it has become a practical necessity because probate paperwork and filing procedures can be very complex.

Step Two: Publishing Notice to Creditors
The second major job of the probate court is to ensure that the decedent’s creditors are notified so that they can present their claims to the court for payment. This requires the time-consuming task of cataloging all of the decedent’s liabilities. The creditors are notified either by notices in the local newspaper or directly by mail. The law sets a time that the probate proceeding must be left open in order to allow creditors the chance to present their claims. In Pennsylvania, the creditor period is several months long.

Step Three: Inventory and Appraise Assets
During probate, all of the assets in the estate are usually frozen so that an accurate inventory and appraisal can be made. During this period, none of the assets can be distributed or sold without permission from the court. The court will often require formal written appraisals for many items, such as real estate, antiques, collectibles, automobiles, furniture, and other valuable assets. Appraisal fees can be expensive and, like all expenses, are paid for out of the estate.

Step Four: Payment of Debts, Claims and Taxes
Once all of the debts and claims have been submitted and approved, they are presented to the court for approval to pay them from the assets of the estate. Some estates may also have death tax liability and they must stay open until those taxes are paid.
During the entire probate process, disgruntled heirs or those who disagree with the provisions in the will can bring a lawsuit in the probate court. These suits are referred to as will contests. Will contests can prolong the distribution of the estate, and are often used to intimidate heirs into settling cases that have no merit.

Step Five: Final Distribution and Closing of Estate
Finally, after the court is satisfied that all legal requirements have been met, it will allow all debts, claims, taxes, attorney’s fees, the personal representative’s compensation, and any other miscellaneous expenses to be paid. If there is not enough cash in the estate to pay these substantial claims, the judge can order that assets be sold at public auctions or estate sales in order to defray these costs. These transactions are often conducted in a depressed market or under the banner of “distressed sales.”

After all of the liabilities and fees are finally paid, the probate court will allow final distribution of whatever is left of the estate to the beneficiaries named in the will; or, if there is no will, to the designated heirs at law. The court then closes the file.

Simplified Probate Procedures

Pennsylvania has a simplified probate process for small estates. To use it, an executor files a written request with the local probate court asking to use the simplified procedure. The court may authorize the executor to distribute the assets without having to jump through the hoops of regular probate.

You can use the simplified small estate process in Pennsylvania if property (not counting real estate, certain vehicles, certain payments the family is entitled to, and funeral costs) is worth $25,000 or less. 20 Pa. Cons. Stat. Ann. § 3102.

What are the costs of probate

In Pennsylvania, the costs of probate include filing fees for opening the estate, advertising the estate, filing an inventory of estate assets and other papers to complete the administration process. In addition, legal fees are paid to the attorney handling the estate work, which may include preparation of various death and income tax returns. The personal representative may charge a commission. Obtaining appropriate legal advice about the administration of the estate can help keep down costs as well as taxes. Legal counsel is also advisable in dealing with assets which pass outside of probate, such as when a living trust is involved.

Probate When You Do Not Have a Will

Your heirs will not avoid probate just because you do not have a will. Your heirs still will have to have your estate handled through the probate court. Instead of you controlling the distribution of your estate, it will be handled by the court according to state law without any regard for your wishes. In the event that you do not have any heirs, the state will take your property.