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Starting The Probate Process

The probate process is often daunting. Having an overall picture of what the process entails, and how steps fit together, will help everyone involved. However, the probate of every estate is unique. Everyone has different assets, debts, record-keeping habits, goals and family. Thus, the following description won't precisely match any probate you may become involved in. But flexibility, keeping in mind the overall picture, and careful use of professional advisers will help any executor complete his or her tasks effectively.

Funeral arrangements
When death occurs, final arrangements--the funeral, ceremony, burial or cremation, and cemetery or other instructions--must be dealt with. Immediate family members generally handle this, but depending on the circumstances, a partner, friends or others may become involved. If you are the executor, your first step is to determine the wishes of the decedent. Most likely, the decedent has communicated these to you and others. In any event, consider all the sources of information so that you can carry out (or help others to carry out) the decedent's wishes:

Letter of instruction. Many people prepare a letter of instruction that addresses many issues, including organ donations, funeral and burial or cremation requests. Try to locate this letter and review it as quickly as possible.
Living will. A copy is often kept in the decedent's physician's records or hospital records. Living wills often include the decedent's wishes for final arrangements.
Health care proxy. Some people sign only a living will, others only a health care proxy, some both. If the living will is silent, the health care proxy may include directions as to how to handle funeral and other steps.
Deed for a burial plot. Many people purchase plots in advance. Locating this information can resolve the issue in many cases as to where and to some extent how the decedent's burial or internment should be handled.
Pre-need funeral trust. The decedent may have made arrangements in advance for funeral costs. Review the decedent's letter of instructions and other important papers for this. Ask close friends and family whether they were aware of such arrangements. Call area funeral homes to find out whether any arrangements were made with them.
Will. While a will may list the intent to be an organ donor as well as directions for the funeral and other final arrangements, it is often not available quickly enough. If the decedent's intent cannot be determined from the other sources indicated, attempt to locate the will quickly, or at least a copy. If the will is in the decedent's safe deposit box, expedited procedures are available to get it. Consult with the estate's attorney.
Contact the decedent's religious adviser. If the decedent had any religious affiliations or beliefs (these are sometimes addressed in the living will), request a consultation with the religious adviser concerning the appropriate steps to take for burial, services, mourning and the like. If the family, friends and loved ones have any particular religious affiliation, a religious adviser may provide considerable solace for them.
Consult members of the decedent's family and loved ones. The decedent's wishes must be honored, but often requests and feelings of others can also be respected. It can only serve to lessen tension at such a traumatic time.

Because funeral and related immediate costs must be taken care of promptly, they are often paid for by family or others close to the decedent. The estate reimburses them later. State law will generally provide that the estate must reimburse reasonable funeral expenses. Get copies of all bills, receipts and other documents supporting the expenses you reimburse. If the funeral arrangements were lavish, unusual or expensive, an issue may arise as to what the estate can pay for. The will may provide directions for funeral or other arrangements that could be helpful for you as executor. If there are any disputes among family or others at a later date concerning these arrangements, the directions in the will can support your payment of these costs. If the will is silent and the expenses unusual, consult with an estate attorney before reimbursement to avoid any risk of being personally surcharged.

Emotional considerations
Sensitivity, compassion and caring are the most important characteristics the executor and all others involved initially need to exhibit. No matter how much notice and preparation preceded the death, the decedent's family and loved ones will have strong emotions over their loss. They may react with sorrow, hurt, disappointment or anger. Even the most decisive and organized people can become confused, indecisive and despondent. It is essential to be attuned to these feelings so that you can respond accordingly. If the decedent was the primary or sole source of support, the survivors will, along with the many personal feelings, be worried about their future financial stability and security.

By handling an estate's affairs in an organized and professional manner, an executor can contribute significantly to helping the survivors move forward.

Where does probate take place?
A decedent's domicile will affect which state laws are applied to the estate. Domicile can affect state inheritance and other taxes. You will likely need a lawyer in the state of the decedent's domicile.

Domicile refers to the decedent's permanent home, where the person ultimately intended to return and reside. Domicile differs from residence, which is where the decedent merely lived some of the time. Domicile is a stronger concept, and harder to change, than one's residence. This definition includes both the location and intention of the taxpayer. Therefore, both location and intention must change to effectively change domicile. While location is a relatively obvious matter to ascertain, intentions are not.

In most cases, it is obvious where the decedent lived, what place he or she called home. As society has become more mobile, however, the decision is not always obvious, but the consequences will often be significant.

The domicile is based on an analysis of numerous factors, including the following:

Where the decedent voted
Where the decedent's principal business activity was conducted
The center of the decedent's social affairs
The location that was referred to as, and treated as, home
The state identified as the decedent's domicile in his or her will
The location where the decedent lived for the greatest portion of the time
The location of the decedent's principal possessions
Where the decedent paid local taxes
Where the decedent owned burial plots

Once you determine the location of the decedent's domicile, that will be the state in which to begin the proceedings if probate is necessary.

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AEPAD is the American Estate Planning Attorney Directory. While the information on this site deals with legal issues, it does not constitute legal advice. If you have specific questions related to information available on this site, you are strongly encouraged to consult an attorney who can investigate the circumstances of your situation and the particulars in your state.

Starting The Probate Process

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