Probate of a Decedent’s Estate
A Personal Representative has fiduciary duties. This means that they must act in the best interest of the estate by putting the estate interests ahead of his or her own. This individual is entrusted with property that belongs to others. Estate assets cannot be used for personal benefit. All duties must be performed solely for the best interests of the estate’s interested persons.
Assistance of Professionals
Probate laws demand strict compliance and are tightly drawn to protect the interests of creditors, taxing authorities, and interested persons. Since the Personal Representative is responsible for administering the estate, they may desire professional assistance from an attorney, accountant or investment counselor.
Engaging an Attorney
The Personal Representative may find it desirable to employ an attorney to assist with administration. The attorney may suggest employing other professionals. The fees for these services should be discussed and agreed upon. Also, the duties of each estate administration member (personal representative, attorney, accountant, etc.) should be expressly defined.
At the completion of the administration, the Personal Representative may be paid a reasonable fee for performing duties to the estate. These fees and those of the other estate administration members (attorneys, accountants, etc.) may need court approval. If reasonable, fees may be paid from estate funds and be deducted in determining tax liability.
TYPES OF PROBATE ADMINISTRATION
There are two types of decedent’s estate administration: Supervised and Unsupervised. In both types, the Personal Representative administers the estate from funeral arrangements at the beginning, through distribution of assets, to estate closing at the end. Usually, the petitioner selects either supervised or unsupervised administration. Sometimes the facts dictate a supervised estate.
Supervised Administration requires the Probate Court to review and approve the activities of the estate.
Unsupervised Administration does not require the Probate Court’s review or approval.
An interested person or the Personal Representative may request supervision at any point on a particular issue, or for the duration of the administration.
Opening the Estate
There are two ways to begin administration of a decedent’s estate: Formally or Informally.
Formal Proceedings begin by filing a Petition for Probate and/or Appointment of Personal Representative (Testate/Intestate) and other related papers. Interested persons must either consent to the petition or be notified of the hearing. After the Probate Judge enters an Order of Formal Proceedings, the heirs are determined, the will (if any) is admitted, and a Personal Representative is appointed. After an Acceptance of Appointment and any required bond is filed, the Personal Representative becomes qualified to act until the estate is ready to be closed.
Informal Proceedings begin without a court hearing by filing an Application for Informal Probate and/or Appointment of Personal Representative (Testate/Intestate). Prior notice to interested persons is only required for those interested persons with equal or higher priority. If the Application is granted the Probate Register’s Statement will admit the will (if any) and appoint the Personal Representative. After an Acceptance of Appointment and any required bond is filed, the Personal Representative becomes qualified to act until the estate is ready to be closed.
Closing the Estate
In general, an estate may be closed as follows:
• File and serve on interested persons Petition and Order for Complete Estate Settlement, Testacy Previously Adjudicated –if the estate was opened formally.
• File and serve on interested persons Petition and Order for Adjudication of Testacy and Complete Estate Settlement if the estate was opened informally.
• Either prepare Sworn Statement to Close Unsupervised Administration, serve it on interested persons and file it with the Court; or
• Prepare one of the Petitions for Complete Estate Settlement (depending on the situation).
Selecting the appropriate type of Petition for commencing the Probate proceeding and submitting the correct documentation can be difficult for an individual not familiar with the Probate Court and the rules concerning estates. As an experienced Probate practitioner I can assist a family during this emotionally difficult time by removing the burden and alleviating the confusion surrounding this task.