15.3 Probate Administration

Section 15.2 covered intestate succession and the probate-versus-nonprobate distinction. This section is the administration itself — the blueprint's Probate line item — because it is the single largest block of hands-on work an estates paralegal does and because the PCCE asks about its sequence and its notice rules.

What probate is for

Probate does four things: it establishes the validity of the will (or confirms there is none), appoints someone with authority to act for the decedent, provides an orderly mechanism for creditors to be paid or barred, and transfers clear title to the people entitled to it. Only probate property goes through it. Joint tenancy with right of survivorship, beneficiary-designated accounts, life insurance, payable-on-death and transfer-on-death registrations, and trust assets pass outside probate regardless of what the will says.

Opening the estate

1. Determine the proper court and venue — usually the county of the decedent's domicile at death. Real property in another state generally requires ancillary administration there.

2. File the petition with the original will (if any), a death certificate, and the names and addresses of heirs and devisees.

3. Prove the will. A self-proving affidavit — the testator's and witnesses' sworn statement executed with the will — lets the will be admitted without live witness testimony. Without one, the court may require testimony from an attesting witness or proof of handwriting.

4. Give notice to heirs, devisees, and other interested persons as the statute requires. Interested persons may file a will contest within the statutory period.

5. Appointment and letters. The court appoints the personal representative and issues letters — letters testamentary to an executor named in the will, letters of administration to an administrator when there is no will, no named executor, or the named executor cannot or will not serve. Letters are the proof of authority that banks, brokerages, and title companies demand. Order certified copies early and in quantity.

6. Bond, unless the will waives it or the statute or all interested persons excuse it.

Supervised, unsupervised, and informal

Under the Uniform Probate Code model, informal probate is largely administrative and moves through a registrar; formal probate is a judicial proceeding used when there is a contest, an ambiguity, or an unusual asset. Many states similarly distinguish supervised administration, where the court approves major acts, from unsupervised or independent administration, where the representative acts and reports at the end. Know that both models exist and that the paralegal's calendar is driven by which one applies.

Administering

Marshalling assets. Secure the residence and personal property, redirect mail, open an estate bank account, obtain an EIN on Form SS-4 (the estate is a separate taxpayer; never use the decedent's Social Security number for estate income), collect account statements, and locate insurance policies, safe-deposit boxes, and digital assets.

Inventory and appraisal. Most states require an inventory filed or delivered to interested persons within a set period, listing probate assets at date-of-death value. Real property, closely held business interests, and unique personal property need a qualified appraisal. This is core paralegal work.

Fiduciary duties. The personal representative owes the estate duties of loyalty (no self-dealing), care (prudent administration), impartiality among beneficiaries, segregation — no commingling estate funds with personal funds — and accounting. Breach exposes the representative personally.

Creditors

This is heavily tested. Two obligations run in parallel:

• Publication. Notice to unknown creditors is published as the statute directs, starting the non-claim period.
• Actual notice to known creditors. In Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478 (1988), the Supreme Court held that where a non-claim statute is triggered by probate proceedings, due process requires notice by mail or other means as certain to ensure actual notice to creditors who are known or reasonably ascertainable. Publication alone does not cut off those creditors.

So the paralegal's job is to search the file for creditors — reviewing the decedent's mail, bank statements, credit reports, and medical bills — and mail notice to every one identified. Claims are then allowed or rejected; a rejected claimant must sue within a short statutory window or be barred.

Order of payment. When the estate is insolvent, statutes rank claims: administration expenses first, then funeral expenses, then family allowances, then taxes and debts with statutory priority, then general unsecured claims. Abatement rules then govern which gifts are reduced when assets are short — generally residuary first, then general, then specific devises.

Family protections

Most states give a surviving spouse and minor children protections that override the will: the elective (forced) share, a homestead allowance, a family allowance during administration, and exempt personal property. An omitted (pretermitted) spouse or child — one who married or was born after the will was executed and is not provided for — may take an intestate-style share under many statutes. Community-property states handle spousal rights through the property system instead.

Taxes

Form 706 is required when the gross estate plus adjusted taxable gifts exceeds the basic exclusion amount for the year of death. That amount changes annually — look it up for the year in question rather than memorizing a figure. Two points do not change: a portability election, which lets a surviving spouse use the deceased spouse's unused exclusion, requires filing Form 706 even when no tax is owed, and an estate tax is imposed on the estate while an inheritance tax (in the few states that have one) is imposed on the recipient.

Closing

The representative files an accounting — receipts, disbursements, gains and losses, proposed distributions, and fees — for approval or waiver by the beneficiaries. Then distribution: deeds for real property, assignments for business interests, transfer paperwork for securities, and a receipt and release from each distributee. The representative petitions for discharge, and the court closes the estate.

Small estates. Most states offer a small-estate affidavit or summary administration below a dollar threshold, letting successors collect assets without full probate.

Worked path

The decedent died in March domiciled in the county, with a self-proved will and a condominium in another state. The paralegal files the petition, obtains letters testamentary, and orders six certified copies. She opens the estate account and files Form SS-4 for the EIN. She inventories assets at date-of-death value and orders an appraisal on the condominium. Reviewing three months of mail and the credit report, she identifies a hospital, a credit card issuer, and a lawn service as known creditors and mails each actual notice in addition to publishing. She calendars the claim period, the inventory deadline, and the nine-month Form 706 date — noting that even though the estate is below the filing threshold, the surviving spouse wants portability, so a Form 706 will be filed anyway. She opens an ancillary proceeding for the out-of-state condominium. At the end she prepares the accounting, collects receipts and releases, and files the petition for discharge.