by Mark A. Krohn, Esq., Partner
Jacobowitz & Gubits, LLP

Most States have specific requirements that govern the settlement of an estate. Those requirements are generally similar but can vary slightly from state-to-state. There are also differences in how state laws deal with an estate where no Last Will and Testament exists (Administration Proceeding) versus an estate involving a Will (Probate Proceeding).

A beginning point, when viewing the task of settling an estate, is to first determine if the decedent died with a Will or not. If there is a Will, the Will must be reviewed to determine whom the decedent appointed as an Executor. If the appointed Executor agrees to serve, he or she generally contacts an attorney for purposes of completing a Petition for Probate for filing with the Surrogate’s Court. In association with completing the Petition for Probate, the Executor or attorney will need to take a preliminary inventory of the decedent’s assets. As part of this process, it will be important to understand how those assets are held. For example, jointly-held assets pass outside the decedent’s estate by “operation of law” and are neither included as part of the decedent’s estate. On the other hand, assets held individually by the decedent are generally included as part of the decedent’s estate.

Where no will exists, the steps to be taken are similar except an “Administrator” rather than an “Executor” is appointed to settle the decedent’s estate. Those persons qualified to serve as Administrator generally consist of family members or even a creditor. If no one is available to serve then the court can appoint the Public Administrator to administer the decedent’s estate.

After the appointment of an Executor or Administrator (hereafter the “personal representative”) and the preliminary inventory of the decedent’s assets the next step is generally to evaluate what debts or claims exist against the estate. A creditor having actual knowledge of the decedent’s death generally has within seven months in which to file a claim against the estate. The personal representative must be careful to pay secured and priority claims first, and thereafter pay unsecured claims last to prevent from being held personally liable.