Deciding the next move after my aunt passed away. Can anyone tell me how the probate process works?

Lorraine,

You have a heart of gold! What a drive. Sorry I don’t know answers to your questions but it’s good to see you 💗

my experience is that the first step is determined by IF there is a valid will and IF it names you as Executor.
if yes, then you or your probate atty, then file the will in PC. Then you in person appear in probate court (PC) to be named Executor and you get “Letters Testamentary”. LT have your name on them & state your authority to do the whatevers for Auntie estate. You kinda need a dz or so original LT as most entities will NOT accept copies. LT will state the type of administration you are under as Executor- like dependent or independent administration. I’ve been both types & they are quite different creatures.

The next steps, well What you need to do to settle the estate to me totally depends on how much & what kind of assets Auntie had & what kinda debt gets filed against her Estate. Now can you DIY this??? ... maybe if your comfortable in a courthouse and kinda understand the filing process and Auntie ONLY had a single fully paid up home &/or car that her will states who they are to go to AND there’s no claims (debts) against her estate.

the claims part is tied to the NOC - Notice to Creditors- this is kinda an ad that’s placed in a paper of record for the county that she died in and reads that probate has been opened & if you have a debt against auntie you have to file it either to your attorney or you as Executor. NOC has a very specific format & # of runs that MUST be adhered to.

If no will, then it’s different path as you have to prove to the state & PC that you are a lineal heir. This path imo you cannot ever DIY. You have to have a PC atty as they have to do a call out to try to find all heirs. If Auntie or her late hubs were married beyond thier marriage, any family from all marriages have to have some sort of attempt to find or contact. & if it’s nieces & nephews who would be heirs all those need to be contacted. Really It’s not a DIY. There are probate attys who do nothing but lineal work. It’s not expensive but very precise & the atty like have standing in several counties & online access to various courthouses and newspapers and do filings via on-line portals.

so is there a valid will?
are you clearly named to be Executor in the will?
Or is it a no will situation?

Also, Are you a resident of Aunties state? You mention 1200 miles drive to auntie. If your not in her state, you may flat just need a probate atty if her estate has any assets & claims to deal with.

if auntie was on Medicaid, Medicaid has to attempt to recoup costs paid (MERP). MERP can be dealt with but it’s pretty daunting unless you’ve anticipated this and have your exemptions, exclusions at the ready and have the purse to do probate for a while imo.

Absolutely fascinating question for me, this, and I am so interested in the answers here. There is so much information here. I am 77 and I am managing Estate of my bro who has early Lewy's diagnosis, so asked me to serve as Trustee of his Trust and as POA to pay all his bills, manage his affairs. It is relatively easy in "life" as he still is competent to sign things. But at 77, hating to fly (he is on one end of our long state and I on the other). I am the only heir. He has basically his Trust Checking our of which everything comes and into which SS goes. Then three saving accounts and his little home, soon to go for sale. Even with that little, it is my fear of lack of knowledge that keeps me up at night. I am sole beneficiary and also executor, and Trustee in the event of his demise. I guess I would attempt to hand most of it over to a lawyer, but you hear scary things, such as 20% of the estate up the Lawyer's sleeves. I am assuming that is if you refuse to act as Executor or Trustee and get it "assigned " to a lawyer. I am so far learning the very hard way how different it is to deal with a bank versus dealing with medicare/Social Security, versus dealing with IRS versus dealing with DMV versus dealing with real estate in Trust. Everyone wants something different. So thinking that you have a POA signed and delivered with Lawyer as well as a Trustee of Trust is enough doesn't turn out to be the case.
It is all so daunting, and to me it is the stuff that keeps me awake at night. My story of the Towed demolished Truck of his has gone on now since last February, and is a story in and all of its own. That file is titled "Toyota Debacle". It's an inch thick.
Every time I get pushed my partner peels me off the ceiling. He tells me "it's only numbers. No one is going to jail you. No one wants to pay for your food and medical until you die." And I land down briefly on earth.
I will say this. I am LEARNING. The hard way.
Lorraine, I can't imagine all you will learn on this journey and I hope you will keep us posted.
Igloo, thanks for all the info you always give here, and I have to tell you you have calmed me a few times already.
Good luck, Lorraine and please stick around and keep us posted on EVERYTHING you learn. The help on the forum keep my head above the water.

Lots and lots of questions.  

I'm going to pick up after Igloo's post, on the very first issue of whether or not there's a Will or Trust.   A Trust isn't necessary except under certain circumstances, but if there's no Will, the issue of (a) who manages the estate and (b) who inherits the assets are primary issues that need to be addressed before any disposition of assets can be made.

If (a), and if your aunt was a resident of Illinois, its statutes govern who inherits.    This is a pretty good and thorough site for providing information on intestacy:

https://www.nolo.com/legal-encyclopedia/intestate-succession-illinois.html.

I would start here as the first big step.  It will determine and help guide you to either handle the Estate yourself or turn it over to one of the relatives as listed in order of priority.

Alva, your tasks will be made easier b/c you're the Successor Trustee and sole heir.   The biggest hassle will be retitling assets and dealing with Trust income tax returns.  

For this I would definitely recommend a trust accountant.   If you feel brave, download the IRS Form 1041 and the 1041 booklet, and start reading through it.    I almost guarantee that you'll want a Trust accountant after plowing through the murky 1041 instruction booklet.

In the meantime though, it'll be easier for you when the time comes if you inventory all the assets now, and designate for your list how each is titled.   Contact and account numbers help.

Variations in title transfer were a nuisance when my sister died.   Secretary of State vs. insurance companies vs. state pension funds...all little entities and domains unto themselves. 

The things I didn't prepare for are ones I never thought of:   (a)  assets that might have been given or manipulated away prior to death (pushy people taking advantage is perhaps more appropriate), (b)  keys to EVERYTHING  (c)  location of in home safety and fireproof deposit boxes or at banks, and (d) preferred disposition methods of assets.

E.g.,(a):    I found that perhaps half of what used to be in my father's workshop has disappeared.   There's been no theft since he died, so whatever was taken occurred while he was alive.  I have a suspicion of who pressured him to take some of these things, b/c this same person had been telling me for a few years before Dad died what he wanted.   I think he already finagled the rest from my father, but Dad drew the line at some of the assets.   Still, I have no idea what happened to them, and some of them are valuable, such as the scroll saw.

(b)  I can't find keys to the travel trailer and have no idea where they are.
(c)  I can't locate a safety deposit box with old financial papers (I don't need the data) which contained valuable personal items.
(d)  Dad always donated to Salvation Army and Purple Heart, so I'm following that as they're my go-to charities.    That excludes a few neighbors, acquaintances and relatives, some of whom have ALREADY told me what they would like to have.

As to 20% of an estate's value to an attorney, I've never heard and know nothing about it.   I will ask for help when I need it, but it will be one of the firms for which I worked years ago, and at an hourly rate.   There's no doubt it could be expensive, but it would only be for issues that I can't resolve.  

Frankly, I wouldn't want to travel the trust management road alone, w/o either a trust accountant or a trust attorney.   

One thing you might not be prepared for is the exorbitant rate of insurance for a vacant house.    But it's necessary.  It wouldn't hurt to explore this with your insurance agent.   I've been told that basically there are only two (or was it one?  I can't remember) companies that insure vacant houses.   And that does NOT include water damage.   But if the house will be sold shortly, you may be able to avoid this. 

One of the first winter issues I faced was winterizing the pipes.   I couldn't tell whether or not there were sillcocks on the faucets, outdoors and through the space between the exterior wall and interior wall.   So I bought antifreeze sleeves, stuffed them with something warm (I don't remember what), drained the pipes but made sure to dash out to Dad's and check everything when the Polar Vortex hit.

If the house is shortly to be sold though, frozen pipes might not be an issue.

I have some experience in other areas you've mentioned, but am expecting the temps to plunge tonight and need to get some prep work done outside.   Feel free to post again or PM me if I can help.

In Mississippi, you have to use an attorney. I don't know about other states, but the attorney does it all, including what has to be posted in the newspapers.

You can google online if your state allows you to do probate without an attorney.

Probate through an attorney cost $2000 in 2011 and I learned this was a reasonable amount. Probate takes a full year and I was not allowed to sell or disperse any items until after Probate finished.

First was there a will? Next I assume all assets were in aunt's name only. The dead cannot sign anything so going to court to be appointed executor (with will) or administrator (without a will). The letters of Office is your Power. Like a Power of Attorney. The purpose of the ad in the paper, which the court clerk does simply announces the Aunt's passing and any claims against her estate need to contact the court clerk under the case no. and by a certain date. That is typically 6 months. During this time, you can clean out the house, list it for sale, you have the power . Now all transactions are The Estate of "Aunt" by "you" as executor / administrator. As Administrator, you may have to get court permission to get rid of anything. Keep receipts in case a final 706 which is a deceased's 1040 tax return. The list can go on and on. A simple copy of death certificate could be faxed or emailed with attachment to creditors, medical personnel and they usually write if off. On occasion they may request an original. This keeps one busy for the first 6-7 months. End result, if there is cash, keep a tight running total of expenditures. There is expenditures as executor, gas, stamps, don't think you can pay yourself a salary, but you can certainly be reimbursed. Bank account with Letters of Office in hand is changed to Estate of "Aunt" and you as your authority. Hope this helps.

I would recommend getting in touch with a lawyer. Every state is different, but I think a lawyer would be a good first step.

You can Google Probate for more info.

Although it involves expense, you need to hire a lawyer, in the county/state where your aunt lived, to do the probate process either with or without a will. There are lawyers who specialize in probate. The lawyer will know what to do, as probates must go through the courts.

t would be worth the time and money to see a family lawyer who is licensed in your aunt's state of residence. He/She knows all the legal ins and outs and hoops you'll need to jump through. Btw, it took my sister 1 year to finally tie up all my Gram's financial affairs because we had to pay the final property taxes.

You only have to do probate if the estate has a large value. I cannot tell you exactly what the cutoff is. Did she leave a will saying how she wanted her assets to be distributed? If it is a large estate, it may be advisable to get an attorney who specializes in estates. Court papers are required for probate, assigning the executor of the will. If so, you have to follow the terms of the will. I had to do it for my aunt who lived in a different state than I do after she passed away. I had to transfer her bank account to an "estate" account at her bank. I had to make a list of all of her assets and their value, and ownership had to be transferred to her beneficiary. Titles for property also have to be transferred to the beneficiary. It gets more complicated when there is more than one beneficiary. In my aunt's case, I had to put in claims for unclaimed property in 3 states. Don't close the estate bank account until you have all the money collected that is owed. (I closed the bank account too early, and then had a difficult time claiming some unclaimed property more than a year later). The executor also must pay the bills of the estate.

Step one is getting the will to the court to receive your permission to administer the estate in the manner she requests. These are "Letters Testamentary" and really one page, which you will need LEGAL copies of for such entities as accounts and etc. Amazon is full of books to help you. You may wish to interview an attorney to assist you; arrange an interview. Be certain this is an attorney whose practice involves probate, trust and estates as a specialty, because their computer portals are capable of operating in courts in several counties (important if your aunt didn't die in the county you live in. Start both a diary and a file box now (an old wine box with manila folders is fine). Keep careful records of every step, every expense, including car fare, and etc. You will need a special EIN number. An attorney can help with this, but every step you take on your own will save money. There will be letters you must send to each beneficiary and there will be notifications to put in paper for creditors. YouTube has tutorials on getting EIN and discussions on all this. A book that can be helpful is "Please don't die! But if you do, what do I do next" by Kurt Grube and Keith S. Grube. On Amazon, about 14.00.
I have not been through this, but am reading ahead, and can tell you you will be VERY busy at first, but then you will learn to slowly go a day at a time. There are many on the forum who are REALLY BRIGHT, so if you have specific questions, both go to the search glass and type in your need such as How To Get EIN for taxes. Someone will step forward to help. The thing about an attorney to help you is that laws differ state to state and you do not want to make a mistake. Mistakes are easy to make.
Do know also that you can go to court and say you do not wish to/are not able to be executor. Someone else in family can then step forward or an administrator will be assigned. This will be costly to the estate, but may be the best for you personally.
Know also that some things pass outside of probate, such as bank accounts that have POD (pay on death), cars registered to Aunt Ann OR Daisy Mae, etc.

Probate happens in our state here if someone passes and there is no will, every thing goes into probate. It can take years and lots of money too get things out of probate. I had a friend, her father had a house, she was living there with her very young daughter helping take care of dad. When he passed there was no will, probate stepped in, the house was taken as they didnt have the financial resources to get it back. My friend and her daughter had to find a place to stay. Hiring an attorney is one thing my friend said she should have done, this would have saved her a bit of grief as she would have been prepared or been able to possibly remain in the house, not understanding the court papers created her problem.
My suggestion is to hire a probate attorney.

Going through the same as the personal representative of my father's estate. I also learned too late the importance of getting a TOD or POD (beneficiary statement) on every single account including checking/savings accounts. Depending on the state you live in, there is a threshold amount of unassigned assets that can push you into probate even with a will. If it's a mini-probate, you may not have to go to court. The lawyer can take care of getting you personal representative status. That is what the Certified Letters Testamentary are: multiple copies of stamped certification giving you authority to disseminate the assets of the estate. Once it is determined you need to go to probate, they publish the notice in a legal newspaper (ours was for 2 weeks) to give notice to people who may hold some kind of debt on the estate. They have 4 months (at least in our state) to file a claim. The notice includes the contact name/address of the personal representative, so as a result of this, I got deludged with letters (and a few phone calls) from realtors and flippers wanting to buy "the house" even though there wasn't one. I could never have done all this by myself but I also have to say I am billed by the attorney for every question that I ask by phone or email. It is not an inexpensive process. Happy not to have to go through full probate, which would have been required without a will.

HIRE AN ATTORNEY. I recommend contacting:

National Academy of Elder Law Attorneys
https://www.naela.org/findlawyer
naela@naela.org
NAELA Council of Advanced Practitioners
1577 Spring Hill Rd., Suite 310
Vienna, VA 22182 
703-942-5711
naela@naela.org

Personal recommendation:

M. Carl Glatstein
Glatstein & O'Brien LLP

Hello and my condolences. When my mom died I became my dad’s Guardian and then Executor for her estate; a couple months later I became Executor for his estate. I paid an attorney (I did not use the family lawyer...) to obtain emergency Guardianship, but I did most of the legwork so when it came to closing Guardianship and conducting Executor duties I did that myself. The Wisconsin county had a great website with all forms online and a handbook; also the county Probate herself was very knowledgeable and helpful.

**I think your first step should be to visit the county Probate of the deceased and walk through with them the requirements and forms needed in your situation to become an Executor of the deceased Estate; their advice and support is crucial. If you want to proceed make a follow-on appointment – get everything you need to get done to get appointed Executor for that next appointment. If you have a copy of the will (family lawyer would have a copy), are named Executor, and have a copy of the death certificate that should make it easier; it also may be easier if the value of the estate is low enough to Informally Administrate. If you are from out of state, like I was, you may need to file a Surety Bond and have a local POC available to support your request.  

As the estate Executor there are special requirements/forms to give either bill collectors a chance to present a claim against the estate (unknown - newspaper postings, known - notifications to those you know are owed money) or heirs/interested parties a chance to see/challenge details in the estate process (you have to formally deliver required documents); in some states heirs may actually be able to break a will. There are also fiduciary responsibilities and forms to fill out for the probate (inventory), Estate Receipts, Social Security (death certificate and payback of last month), IRS (create EIN, Schedule CC, and Form 56), other retired pay, stocks (which are treated specially in some cases), insurance, etc..

As soon as you are Executor (with Domiciliary Letters) you need to protect the deceased estate; you should consider replacing locks, verify appropriate insurance is in place, bills are paid, stop unnecessary automated bills, etc.. You may need to look closely at medical/emergency bills for accuracy and coverage; you may have a limited time to fix a bill.  Suggest that you do a video walkthrough of the estate property. **You also need to review and keep on top of all the forms that you will need to fill out and when they need to be submitted.  If applicable visit family lawyer and accountant for background information.

Wisconsin probate forms applicable to my situation: 
1)     Application for Informal Administration (needed to know rough value of estate, medical support, interested persons (heirs/beneficiaries/fiduciary). If you are named as Executor in the will and choose not to serve you will probably have to fill out a declination form.
2)     Waiver and Consents (for interested parties to fill out)
3)     Notice to Creditors (newspaper publication)
4)     Affidavit of Service (Probate) 
5)     Proof of Heirship  
6)     Consent to Serve
7)     Statement of Informal Administration
8)     Signature Bond in Estate or Trust Proceedings
9)     Domiciliary Letters
10)  Inventory
11)  Estate Account
12)  Estate Receipt (for each entity receiving items from the estate)
13)  WI State Required Probates Claim Notice (related to estate payback of medical support).
14)  Personal Representatives Statement to Close Estate

Good luck!

My attorney said:

"At least in metro-Denver, we do have clinics at the courthouses staffed by attorneys who can and do give legal advice. Folks that avail themselves of competent counsel tend to do far better than those who don’t."

Call your probate department at your County Courthouse in your state.

I called probate office and made an appointment. The lady told me what to do and gave me 2 more appointment dates and probate handled putting it in the newspaper for a tiny fee. I took my Mom’s will with me and all checkbooks. Info on all holdings too. I was pretty much prepared. She led me through the whole process. I went to an elder law attorney one time to be sure I was protecting things and I needed to be sure of some things. He only charged me a couple hundred dollars for one hour and it was great info. I had used him before when dealing with Medicaid for my Mom when she was in the nursing home. Thank goodness for him!! If you go to an attorney for initial advice, choose an elder law attorney well versed in probate. It was worth the money for me both times I needed him. First for Medicaid and then for probate. You will know understand more of what the probate person is talking about if you see the elder law attorney. That attorney doesn’t have to take over the whole thing. Just give you a heads up on everything. They charge for an hour of advice. Worth every penny! So sorry for your loss.

Ask the attorney that you have hired for assistance on this. That is what you making payments to him/her to do. If you don't have one, get one, or at least a paralegal.

To all of you;......THANK YOU !! SO VERY MUCH FOR ALL THIS ADVICE!!! IT IS SO HELPFUL!! I am so disappointed in myself for not getting ahead of all this ...I'm learning as I go..but everyone has good unbelievably detailed and super advice ,I have 1cother problem maybe someone else has encountered ,My Aunts lawyer only gave me a COPY of the will but never ever mailed the ORIGINAL will this lawyer is a honest person and admitted that she held on to the original will in case my aunt died before Aunties affairs were tied up at her end which is 1500 miles away we spoke recently and she said please just give me time its been about 30 days should I start calling or wait for my lawyer to call her that already accepted to help me do this, also he said please give me time.....so should I just not bother them for awhile ?