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Cox and Cox: Attorneys at Law >> Blog >> AN OVERVIEW OF THE ESTATE ADMINISTRATION PROCESS

AN OVERVIEW OF THE ESTATE ADMINISTRATION PROCESS

Posted by admin on July 5, 2012

The administration of a decedent estate begins with finding and reading the will.  The will usually names an Executor or Executrix.  The job of that person is to gather the assets of the decedent, safeguard those assets, place cash and any bank accounts in an estate account (in the name of the Executor as Executor of the estate of _____) and to follow the plan of distribution set out in the will, reporting everything to the Commissioner of Accounts, who serves for the Court.

To begin this process, the death certificate is needed.

An appointment to “probate the will” is made with the probate clerk at the courthouse.  Usually the attorney goes to the appointment with the person named in the will.  The original will and the death certificate and an estimate of the decedent’s assets, along with the names, ages and location of each of the “natural heirs” of the decedent must be presented to the probate clerk, as well as a check for the probate fees.

Once the will is probated, the Executor is “qualified” to act.  It is at this point that he or she can establish the estate account.  The estate account should be interest bearing.

The executor will file a listing of the decedent’s assets (the inventory) within four months of being qualified.  This inventory is presented to the “Commissioner in Chancery”, an attorney appointed by the Court to oversee the estate.

Depending on the size of the estate, the Executor can begin to distribute some of the assets of the estate.  If the Executor is given power to sell property by the will (a usual clause), the Executor can sell property, gather funds, and give a preliminary distribution to the beneficiaries named in the will.  Personal property listed in the will is distributed first.

If the personal property in the house has been distributed to the family (usually sentimental value, but antiques and valuable pieces may be treated differently), the Executor will either transfer the property to the person who is named in the will to receive real estate (land and buildings on the land).  If the Executor is going to sell the property, he or she should understand that there is lien on the property for 1 year from the decedent’s death.  This lien can be bonded off if the Executor or beneficiary of the land wants to sell before the 1 year passes.

16 months after the probate and qualification, the Executor presents an “accounting” of how he has dealt with the money and property during the 12 months following the death.

The Executor pays the decedent’s taxes for the last year{s} of the decedent’s life from the estate account.  The Executor pays the decedent’s federal estate taxes (for estates that are over $5,000) out of estate account.  If the estate account{s} earn more than $3,000 or so during the period of administration, an income tax return may be necessary for the estate.  This is also paid out of the estate account, as well as any attorneys fees, probate fees, etc.  If the Executor has paid any of the fees or expenses for the decedent out of his own pocket, like the funeral, he can reimburse himself or any others who have done so.  Trips to see the decedent or to come to get property are not reimbursed.

The Executor can either be reimbursed for expenses (like trips, gasoline, time lost from work, etc), OR 5% of the value of the entire estate, plus 5% of the income earned by the estate account{s}.  This percentage is reduced if the estate is large.

The inventory and accounting forms will be given to the Executor at the time of probate, as well as directions on how to fill them out.  The attorney frequently takes care of these forms for the Executor.

One of the most important things to remember dealing with the property of the estate is to keep careful records and receipts for all financial transactions.  If a distribution is made to beneficiaries before the estate is closed, the recipient must sign a “refunding bond.”

IF THERE IS NO WILL, a qualification as “Administrator” is called for.  The rules for the Administrator are much like those of the Executor, but there are differences which include not being able to sell property without the consent of the court, etc.  An immediate family member may qualify as soon as the death certificate is received, but if no immediate family qualifies within 30 days of the decedent’s death, another person with close ties to the decedent may qualify.

This is just a general outline of how this procedure progresses.  A conference with an attorney skilled in estate administration is always helpful.  There are severe penalties for mishandling the estate funds and property, and similar penalties for failing to keep careful records and to report on the inventory and estate accounting reports as well.

© 2011  Carrollyn C. Cox

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