Probate Court Questions |Probate Tax and Debt Questions



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  1. What is probate?

  2. Is probate necessary?

  3. Does all property go through probate when a person dies?

  4. Do life insurance or retirement benefits need to go through probate?

  5. Do living trusts go through probate?

  6. How much does probate cost?

  7. How long does probate take? (see time line)

  8. Where will the probate hearing be?

  9. Who is in charge of the probate process?

  10. Who can be the personal representative?

  11. Who is not allowed to be the personal representative?

  12. Does the Court supervise the personal representative?

  13. What does the personal representative do?

  14. If I am named as executor in a Will, do I have to serve?

  15. If I serve as executor, will I get paid?

  16. What happens if the personal representative fails to perform his or her duty? (see article)

  17. Do I have to use a lawyer for the probate process?

  18. What if someone objects to the Will?

  19. Who can contest a Will?

  20. When can a Will be contested?

  21. What if there is no Will? (see locating the will)

  22. What happens if we cannot find a Will?

  23. What if the decedent owned land in more than one state?

  24. How do creditors get paid?

  25. If I am a beneficiary and the estate does not have enough money, do I have to pay creditors out of my own pocket?

  26. How are taxes handled in probate?

  27. Am I responsible for paying the rest of my deceased spouse’s bill?

  28. How can I find out if there was a Will?

  29. What if someone dies and I have the Will in my possession?

  30. As an heir, how do I stay informed of what is happening in the probate case?

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26. Probate tax questions: How are taxes handled in probate?

For federal and state tax purposes, death means two things: 

    • It marks the date of the close of the decedent's last tax year for filing an income tax return, and

    • It establishes a new, separate entity for tax purposes, the "estate."

For federal taxes, you may have to fill out and file one or more of the following forms. (It depends on the decedent's income, the size of the estate, and the income of the estate): 

    • Final Form 1040 Federal Income Tax return (the decedent's personal income tax return)

    • Form 1041 Federal Fiduciary Income Tax returns for the estate

    • Form 709 Federal Gift Tax return(s)

The executor must file any needed state income tax return, state fiduciary income tax returns during the probate period, estate tax and gift tax returns.

There may be other taxes, too, like local real estate and personal property taxes, business taxes, and any special state taxes.

The executor must also check for taxes owed for years prior to the decedent's death.
You may need a lawyer to help you understand the information.

27. Probate debt questions: Am I responsible for paying the rest of my deceased spouse’s debts?

Maybe. If you and your spouse shared the same bank account and credit cards, checks, etc., then you may have to pay the bill. (see getting organized)

If the credit cards or accounts were opened with only your spouse’s information as reference, then you may not be liable.

Creditors usually collect their debts from the estate before the remainder is divided among the heirs. Each case depends on the circumstances. Talk to an experienced probate lawyer. 

28. Intestate questions: How can I find out if there was a Will?

First, check with the Probate Court in the county of the state where the decedent lived.

If the Will was filed, it will likely be available to the public for viewing. And, you can purchase a copy. Or, you can hire a local lawyer or legal service bureau to do a search and get a copy for you.

But many people, even with substantial assets, die without a Will.

And, if the decedent held all property through a living trust or a joint ownership arrangement, there may be no need to probate the Will.  Go to reading the Will

29. Probate court question: What if someone dies and I have the Will in my possession?

The law says you must "deposit" the Will with the superior court in the county where the decedent lived, even if there will be no probate. There is no fee involved.

But, the court does not accept Wills for persons who are still living! 

30. Probate court question: As an heir, how do I stay informed of what is happening in the probate case?

You will automatically get notice of certain petitions filed, including the petition for appointment of the personal representative and the final petition when it is time for the estate to be closed and distributed.

If the personal representative wants to sell real property, you should also get a Notice of Proposed Action. If you want to get copies of everything filed in the probate court concerning the estate, file a Request for Special Notice. There is no fee to file this document.

You can contact the personal representative directly if you have any questions. You can also contact the attorney for the estate. But, keep in mind the attorney works for the personal representative and not the heirs.

If you have concerns about the way the personal representative is handling the estate, talk to a lawyer.

Talk to a lawyer for more information.

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