The death of a loved one can be a challenging and emotional experience. While it is important to grieve, it is also important to ensure that a loved one’s affairs are in order. A doctor or another medical professional should legally pronounce the decedent dead soon after death. If the death occured at home or under hospice care, a hospice nurse may pronounce the death and make arrangements to transport the body to a hospital. Medical professionals may also be engaged by calling 911 or transporting the decedent to an emergency room for a legal pronouncement of death. If the decedent did not have a do-not-resuscitate document, medical professionals may attempt life-saving measures before pronouncing the decedent dead.
After the decedent has been legally pronounced dead, the decedent’s primary care physician and the county coroner should be contacted to begin next steps. These may include organ or body donation and funeral preparation. An executor or another responsible person should then arrange for the care of the decedent’s minor children and pets, if any, and begin the probate process by finding and organizing estate documents.
What is the probate process?Probate is the process by which a decedent’s estate is settled and its assets are distributed. The probate process officially begins when a probate case is opened in probate court. Thereafter, the court will appoint an executor, who will assume the responsibility of managing the estate’s assets and shepherding the estate through probate court. During the probate process, the executor will pay the estate’s debts and taxes, resolve any litigation brought by beneficiaries, heirs, or creditors, and transfer estate assets to their new owners.
Do all estates need to be probated?No. If all estate property is transferable outside probate, opening a probate case is unnecessary. Additionally, many states offer small estate procedures, which simplify the probate process and may allow an estate to avoid formal probate altogether. States that follow the Uniform Probate Code (UPC) offer informal probate procedures consisting mostly of paperwork. However, an estate must still pay its debts and taxes even if it avoids formal probate.
Must a will be filed with the court if the estate will not be probated?Yes. Most state laws require that anyone in possession of a will must file it with the probate court within a certain amount of time after death or discovery. Usually, the deadline is between 10 and 30 days.
Where is a probate petition filed?A probate petition is usually filed in the county where the decedent lived at the time of death. If the decedent had a will, the will may indicate where the decedent was living when it was drafted, although a decedent may have subsequently moved. If it is unclear where the decedent lived at the time of death, a petitioner may consider evidence such as where the decedent owned property, where they kept bank accounts, where they were registered to vote, where they held a driver’s license, or the address on their last tax return. If a decedent owned property in more than one state, ancillary probate may be necessary.
What if an executor does not start probate?If an executor does not start the probate process in a reasonable amount of time, another interested party, such as a close relative of the decedent, may be entitled to begin probate proceedings. What constitutes a “reasonable” amount of time may depend on state law. For example, if an executor in a California probate case fails to petition the court for administration within 30 days after they obtain knowledge of the decedent’s death and their status as the executor, they may be held to have waived the right to appointment. The longer that an estate goes without being probated, the more likely it is that the estate will experience an avoidable loss in value. Some states allow any interested party, rather than just an executor, to petition for probate administration. An interested party should consult with a probate attorney to determine whether any state laws prevent them from initiating probate themselves.
Am I required to serve as an executor?No. An individual named as an executor in a will or considered for the role by a probate court may decline the job. However, they should consider who may be eligible to serve instead and whether the estate will be in good hands with that individual. If an executor wishes to resign after probate proceedings have begun, they must ask the court’s permission.
What if the decedent died without a will?If the decedent died without a will, their assets will be distributed according to the state’s rules of intestate succession. Rules of intestate succession vary, but generally a decedent’s surviving spouse and children will inherit their property in proportions dictated by state law. If the decedent did not have a spouse or child, usually the decedent’s parents and siblings will inherit, followed by other relatives. If the decedent did not have any living, identifiable heirs, the state may eventually take ownership of the property.
What is an executor (probate) bond?An executor bond, which is a type of probate bond, is essentially insurance on the estate to protect it from an executor who steals or squanders funds. The size of the bond is generally related to the size of the estate. Bond (surety) or insurance companies supply bonds for a premium that may be paid from estate funds. If an executor breaches their duties, beneficiaries may make a claim against the bond and seek compensation. The bond company may then seek reimbursement from the executor. Sometimes a will states whether an executor must post bond, but often the probate court decides. In most cases, beneficiaries may all agree in writing that a bond is not necessary, although beneficiaries under age 18 cannot legally waive a bond requirement. It is more likely that a court will require a bond if the executor lives out of state or if the person serving as the executor is not the person nominated in the will.
Is an executor entitled to compensation?Yes. An executor is entitled to charge the estate reasonable fees for their work. Sometimes the will or state law will offer guidance regarding the kind of fee that is “reasonable,” but often it is up to the executor to decide. If interested parties, such as an estate’s beneficiaries, believe that the executor’s fees are unreasonable, they may object to the fees in probate court.
Are executor fees taxable?Yes. Executor fees are taxable as income to the executor. Executors who are also beneficiaries often waive executor fees to avoid this tax.
Do beneficiaries pay tax on inherited property?Beneficiaries pay tax on some inherited property. For example, money from 401(k)s, 403(b)s, or IRAs is taxable if that money was tax deductible when it was contributed. Interest on life insurance proceeds may be taxed, as well as tax-deferred savings bonds. A beneficiary must pay income tax on income that would have otherwise gone to the decedent. The federal government does not collect inheritance tax, but some states do. A beneficiary may also owe capital gains tax if they sell valuable inherited property.
What is an insolvent estate and how is one administered?An insolvent estate is an estate in which debts exceed assets. In this situation, most executors will benefit from hiring a lawyer who is experienced in insolvent estates. State law may establish priority for creditor claims, administration and funeral expenses, medical expenses, taxes, and other debts. State law may also prioritize awards due to surviving spouses and children over certain debts. Some assets, such as property protected by a homestead allowance or family allowance, or property held in joint tenancy, may be protected from an estate’s debts.
Is an executor or spouse liable for an estate’s debts?An executor generally will not be liable for an estate’s debts unless they incurred the debt with the decedent, or their careless handling of the estate’s assets caused the estate’s inability to pay its debts. Similarly, spouses generally will be personally liable only for debts that they acquired with the decedent. However, some shared assets may be accessible to an estate’s creditors, depending on state law.
What is qualifying widow(er) status?Surviving spouses with dependent children may be eligible for an income tax break in the two years following the decedent’s death. This is called “qualifying widow(er)” status. A surviving spouse may receive qualifying widow(er) status if they were eligible to file a joint return for the year of the decedent’s death (regardless of whether they actually did), they did not remarry before the end of the tax year, they have a child, stepchild, or foster child who qualifies as a dependent, and they have provided more than half of the cost of maintaining the home (which is also the child’s principal residence).
What happens to a minor’s inherited property?If a minor inherits property from an estate, it may be managed by their parent or a legal property manager, such as a custodian or trustee. If the inherited property is valued under a few thousand dollars, state law may allow the minor’s parent to take control of the property without court supervision. However, if the inherited property is substantially valuable, such as land or an investment account, state law may dictate that an adult entrusted with the property must be authorized to do so by a will, trust, or court. A custodian, trustee, or other appointed manager or guardian will manage the property in the minor’s best interest until their authority expires.
May a beneficiary still inherit if they have mistreated the decedent?In most states, an individual who criminally caused the death of the decedent is never allowed to inherit under their will or through intestate succession laws. The same is true in many states for parents who have abandoned a child, refused to support the child, or committed certain crimes against the child. Some states bar adulterous spouses from inheriting from their spouse, and at least one state bars an individual who financially abused the decedent from inheriting.
May a beneficiary still inherit if they have already collected their gift?A lifetime gift, which is a gift made during a testator’s life rather than after their death, will typically not interfere with a beneficiary’s gift under a will. However, if there is clear evidence that a testator intended the lifetime gift to replace the will provision, such as a written statement to that effect, a court may rule that the beneficiary cannot “double-dip.”
May a lawyer inherit from their client’s will?Some state laws seek to discourage lawyers from inheriting under wills that they drafted for others. Generally, if a lawyer who drafts a will also inherits under the will, the will may be void unless the client and the lawyer were related. Some state laws specify that only substantial gifts are void. Even if state law does not speak to the situation, the will may face a will contest for undue influence.
I do not like the executor of the estate. What can I do?The best way to resolve a conflict with an executor is to communicate with them directly. For example, if a beneficiary disagrees with the executor’s interpretation of the will, the executor and the beneficiary may be able to negotiate or mediate a fair interpretation outside court. However, if a party still disagrees with the executor, or the executor’s actions are harming the estate, they may be able to initiate litigation against the executor and have the executor replaced.
I do not like the probate attorney working on the estate. What can I do?Often, an executor will hire a probate attorney to perform work on the estate and help the executor handle the probate process. A probate attorney hired by the executor represents the executor, rather than the beneficiaries or any other interested party. The executor who hired the probate attorney is free to terminate the attorney’s contract. However, no other party may terminate the executor’s probate attorney. If another party does not like the probate attorney hired by the executor, that party may hire their own attorney, who can help resolve the issue or initiate probate litigation.
What happens to a decedent’s frequent flyer points?If a decedent has remaining frequent flyer points after their death, the rewarding airline or credit card company may allow the transfer of these benefits to another individual. An executor should contact the company to determine whether the transfer is possible. If so, the points may become part of the decedent’s estate.
What happens to a decedent’s firearms?Firearms, including their possession, transfer, and ownership, are governed by both state and federal laws. If an executor cannot confirm that a firearm subject to the National Firearms Act (NFA) was properly registered, they should contact the NFA branch of the Bureau of Alcohol, Tobacco and Firearms (ATF). The executor should follow ATF rules regarding the transfer or abandonment of firearms. Firearms not subject to the NFA may still need to be registered under state or local law. Transferring a firearm may be handled by a Federal Firearm Licensed (FFL) dealer. States may have their own rules regulating and prohibiting certain types of firearms. A violation of state or federal firearm law may result in steep penalties.
Last reviewed November 2023
Probate Law Center Contents