- posted: Dec. 30, 2022
Probate is the process by which the decedent’s affairs are settled and the remaining property is distributed to the rightful beneficiaries or heirs. The decedent’s estate goes through the probate process whether or not the decedent had a will. A personal representative (also known as an “executor” or “executrix”) is responsible for administering the estate.
A personal representative’s role in probate is complex and demanding. The personal representative’s major responsibilities include:
- Opening the estate — The personal representative opens the estate by filing a petition with the court in the appropriate jurisdiction. The court requires information about the decedent such as the last place of residence, a copy of the death certificate and any will in effect at the time of death. The personal representative also sends notices of the opening of the estate to potential beneficiaries, creditors and other interested parties.
- Marshaling the assets — The personal representative collects and inventories all of the decedent’s assets. These include physical assets (i.e. homes, vehicles, jewelry, cash, furnishings, etc.) and non-physical assets (i.e. bank accounts, securities, annuities, etc.). The representative also collects any obligations owed to the estate, which may consist of outstanding salary payments from the decedent’s last employer, annuity payments, and more. The representative must determine the fair value of each asset using an appraiser when necessary.
- Marshaling the debts — The personal representative collects and records any claims against the estate. Some of the decedent’s debts might be automatically extinguished upon death. Other debts survive the decedent and the creditor can make a claim for the debt against the estate. Note that some creditors may try to make claims that are legally impermissible. The personal representative must evaluate and validate each claim.
- Paying claims — Once all assets are properly inventoried and creditor claims verified, the representative pays the outstanding claims on the estate. Payments include those due to the various creditors plus all taxes and fees payable to the government authorities. Paying the taxes may require completing some relatively complex tax returns
- Distributing property — Once all claims, taxes and fees are paid the personal representative then distributes the remaining assets to the beneficiaries or heirs. If the decedent has a will then the property is distributed according to the decedent’s written instructions. If there is no will property is distributed to the decedent’s heirs by way of state “intestacy” laws.
- Closing the estate — After the claims are paid and assets are distributed, the personal representative then closes the estate. The representative provides proof of all payments on claims and proof of distributions, then sends notices of the estate being closed to all parties.
A qualified estate and probate attorney can be particularly helpful with all of the representative’s duties and obligations.
Rapid City-based Anker Law Group advises personal representatives on all aspects of probate and estate administration in South Dakota. Our attorneys also have extensive experience with estate disputes and will contests. If you have a probate matter, feel free to contact us online or call 605-519-5967 for an initial consultation at our Rapid City office.