Probate Process

In general, the probate procedures are intended to carry out the title-clearing purpose of probate by seeing to it that three subsidiary functions are performed. These functions are (1) collecting and inventorying all assets subject to probate administration; (2) insuring that creditors and, often, taxes are paid; and (3) causing the estate to be correctly transferred and distributed to the persons who take under the decedent's will or by intestate succession.
Many states have or are in the process of considering revisions to their probate codes which will simplify probate procedures. A Uniform Probate Code has been approved by the National Conference of Commissioners on Uniform State Laws and has been adopted, in whole or in part, by various states. The basic concept of the Uniform Code is to eliminate the need for obtaining prior court approval for many of the acts taken by a personal representative between the time of his or her appointment and the time of final distribution.

Initial Meeting

The attorney's first involvement with the administration of a decedent's estate usually comes after the funeral when the family or the individual named in the decedent's will calls to schedule an appointment. Occasionally, an attorney may be contacted immediately upon death and asked to assist with issues relating to funeral arrangements, inquests and autopsies, and anatomical gifts. The attorney's first job is to gather information so that a determination concerning what steps should be taken can be made. The family members should be asked to bring as much information regarding the decedent's estate as possible.

Information Gathering Checklist

1. Copy of will
   
2. Properly executed
   
3. Proper attestation clause
   
4. Executor named is able to act
   
5. Records of decedent
   
6. Personal information
   
7. Date of death
   
8. Social security number
   
9. Death certificate
   
10. Income tax returns for three years prior to death (at least)
    
11. Gift tax returns for three years prior to death (at least)
    
12. Prior advisors (attorneys, financial planners, accountants, tax advisors, bankers, insurance agent)
    a. Name
    b. Address
    c. Phone and fax numbers
    
13. Assets
    
14. Real estate
    
15. Bank accounts
    
16. Safe deposit box
    
17. Life insurance policies
    
18. Securities
    
19. Retirement accounts
    
20. Trusts (copy of trust agreement)
    
21. Unrealized income (wages, salary, profit sharing or bonus, employee benefits, burial benefits, Social Security)
    
22. Interests in closely held corporations, partnerships, sole proprietorships
    
23. Debts
    
24. Funeral expenses
    
25. Medical expenses
    
26. Existing creditors
    a. Name
    b. Address
    c. Balance owed
    d. Due dates
    e. Security creditor holds (if any)
    f. Utility or service providers that need final payment and cancellation of agreement.
    
27. Potential creditors—individuals with valid or spurious claims that will be filed against the estate
    
28. Miscellaneous
    a. Antenuptual agreement
    b. Party to a lawsuit
    c. Signatory on guarantee or surety
    
29. Family information
    
30. Spouse
    
31. Prior spouses
    
32. Children
    a. Name
    b. Social security number
    c. Date of birth
    d. Minor/Adult
    e. Competent/Disabled
    f. Natural/Adopted
    g. On active military service
    
33. Grandchildren
    a. Name
    b. Social security number
    c. Date of birth
    d. Minor/Adult
    e. Competent/Disabled
    f. Natural/Adopted
    g. On active military service
    
34. Challenges to administration
    
35. Potential will challenge
    
36. Money required immediately in order to preserve estate assets

Locating Decedent's Property

1. Income tax returns (other income producing assets)
   
2. Search decedent's residence/office for:
   a. Physical property
   
   1. Coins
   2. Hobby collections
   3. Works of art
   b. Bonds
   c. Securities
   d. Cash
   e. Cashiers checks
   
3. Clues that might lead to the identification and location of other property owed by the decedent:
   a. Correspondence
   b. Receipts
   c. Tax bills
   d. Bank statements
   e. Insurance bills
   f. Repair invoices
   
4. Write banks, saving and loan associations, decedent's advisors (prior attorney, accountant, financial planner, etc.) and ask of they have any information about accounts or assets owned by decedent.
   Practice Tip: Correspondence to any institutions should include the full name of the decedent (and any aliases), the decedent's social security number, and where possible the account number for any known account. The correspondence should ask the institution to conduct a search based on the decedent's name and social security number. The correspondence should include evidence of the requestor's authority to demand such a search (Letters of Office and Death Certificate).
   
5. Search Bank Safety Deposit Boxes, storage facilities rented by Decedent, and other types of instruments to store assets.

In addition to Probate Gaston & Gaston APLC also handles Wills and Trusts, just call 619-398-1882 for immediate assistance or fill out the Contact form at right.

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