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What to do when someone dies - the 2025 checklist

Learn what it is, the terms, and what the next few months will look like. We cover everything from qualifying to inventorying and closing.

Beginner's Guide to Probate What Is Probate

The beginner's guide to Probate

Being an executor involves a whole host of responsibilities that take an average of 500 hours and often last well over a year.

How Executors Succeed

Executors of an estate —what they do & secrets to succeeding

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Probate

Affidavit

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Contributor Ben Hopf

Losing a loved one isn't just hard emotionally, it also means filling out a ton of forms & paperwork. Here's what to do next.

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What To Do When Someone Dies - Atticus checklist

What To Do when Someone Dies - The 2025 Checklist

 Uniform Trust Decanting Act (UTDA)

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 Uniform Trust Decanting Act (UTDA) | The Executor's Glossary by Atticus®

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Out-of-State Executor

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Out-of-state executors are just like what they sound like: executors who live outside of the state where the relevant probate court is located. 

Out-of-State Executor | The Executor's Glossary by Atticus®

Out-of-state executors are any executors, executrices, or personal representatives living in a state outside of the one they are serving in. 

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Burial Deed

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A burial deed is a formal document that proves ownership of a specific burial plot, ensuring proper burial in the location chosen by a loved one.

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A Health Savings Account, or HSA, can be a helpful tool when it comes to planning for future medical expenses. In terms of probate, though, an HSA can add an additional layer of complexity to a deceased individual's estate. If you've created an HSA or are considering an HSA, It’s important to understand where the funds in an HSA go (or don’t go) after you pass away. Let's take a look at some of the most common questions we encounter when it comes to HSAS. What is an HSA? A Health Savings Account is an investment vehicle where an individual makes contributions to plan for future medical expenses. Think of an HSA as an investment vehicle or savings vehicle, like an IRA or brokerage account. The only difference is that an HSA is used specifically to save for medical expenses. HSAs have 3 major tax advantages: * Contributions to the HSA are tax-deductible * Interest accumulated in the HSA is tax-deferred * Withdrawals from the HSA are tax-free Those are just a few of the main advantages to setting up an HSA. Another huge perk of an HSA is how the account stays with the original owner. As outlined by the Internal Revenue Service, IRS, another advantage of an HSA is that the account is \"portable.\" It stays with you regardless of where you work.* Although the funds in an HSA stay with the individual who funds the HSA, the account itself stays with an \"HSA custodian.\" An HSA custodian, also known as an HSA administrator, can be a bank, financial institution, insurance company, brokerage firm, or other IRS-approved institution. HSA Contributions Does setting up an HSA mean that an individual can just put however much they’d like in the HSA and call it a day? No, definitely not. Each year, the IRS outlines how much an individual or family can contribute into an HSA. In 2022, the HSA contribution limits were $3,650 for an individual and $7,300 for a family. Any individual aged 55 and older could contribute an additional $1,000 as a catch-up contribution. In 2023, the HSA contribution limits are $3,850 for an individual and $7,750 for a family. Anyone 55 and older can contribute an extra $1,000 as a catch-up contribution. In 2024, the HSA contribution limits will be $4,150 for an individual and $8,300 for families. And once again, anyone 55 and older can contribute an extra $1,000 as a catch-up contribution. It’s important to pay attention to those contribution limits; the IRS has strict penalties for over-contributing. If you donate more than the yearly maximum, you may be subject to an excise tax of 6% on your excess contributions in the year you contributed too much and in each subsequent year that you fail to deduct the excess contribution and its earnings. The extra contribution is regarded as taxable income as well. You might be able to avoid paying income tax and the excise tax for that year if you fix the problem before the tax filing deadline. HSA Withdrawals Just like the IRS has strict rules for making contributions to HSAs, there are also strict rules on what types of expenses HSA withdrawals can be used for. You can only use HSA funds for qualified medical expenses, deductibles, coinsurance, and copayments. You will incur a significant tax penalty if you use HSA funds for unauthorized expenses. If you withdraw money for any non-permissible reason while under the age of 65, you'll be subject to a 20% penalty in addition to any applicable income taxes. If you're 65 or older, you can use HSA funds without incurring penalties for ineligible expenses, but you will still be required to pay income taxes. Because of those high penalties on withdrawing funds for ineligible expenses, it’s important to understand what a qualified medical expense might be. Usually, qualified expenses are any doctor visits, medical equipment, dental care, or vision care for you, your spouse, or any dependents. If you’re not sure about what exactly counts as a qualified medical expense, though, you should consult with your HSA plan provider and your healthcare plan provider. What Happens to an HSA When the Owner Dies? When the HSA owner dies, the funds either go to the named account beneficiary or to the owner’s estate. Let’s break it down in more depth. When an individual dies, a chunk of the individual’s assets (and sometimes all assets) will go through probate. Certain assets (trusts, payable on death accounts, transfer on death accounts) avoid probate. An HSA (health savings account) is typically one of the assets that avoids probate. If you’re familiar with probate, then that should be a relief. After all, any chance to avoid that notoriously time-consuming process should be celebrated. You’ll notice that I used the word \"typically,\" though— like most topics, when it comes to estate settlement there are certain situations where an HSA just might be included in the deceased’s estate. When Does an HSA Avoid Probate? Generally speaking, HSAs avoid probate 99% of the time. HSAs are similar to other transfer-on-death (TOD) accounts in that they are usually set up with a named beneficiary. When an individual sets up an HSA, they will usually need to name a designated beneficiary. It’s usually a requirement by the financial institution or investment manager of the HSA that a beneficiary be named. The designated beneficiary receives the HSA funds once the original HSA owner passes away. Now, an important distinction to make is that it does matter who the named beneficiary is. We’ll get to that in just a minute. For now, though, we need to ask the next question: When Does an HSA Go Into Probate? We said earlier that HSAs avoid probate 99% of the time. So what circumstance would need to occur for the HSA to be included in the deceased’s estate? An HSA will be included in probate if there is no named beneficiary and if the deceased individual has no surviving spouse. In this case, the balance of the HSA will be included in the deceased’s estate and then distributed with other assets according to the deceased’s estate plan. If there is a last will & testament stipulating where funds go after the owner’s death, then the HSA funds fall under the jurisdiction of the will. If the deceased passes away intestate, or without a will, then the HSA funds will distribute according to the intestacy laws of the state.* The bottom line is that it’s important to name an HSA beneficiary. If you have an HSA, or if you are thinking of establishing an HSA, you should ensure that a beneficiary is designated so that the funds in the HSA will avoid probate. What if the Named Beneficiary is a Surviving Spouse? We said earlier that the named beneficiary’s identity matters, and what we were referencing was the difference between the named beneficiary being a surviving spouse and a non-spouse. This is what we were getting at: Surviving spouses can receive the deceased owner’s HSA and continue to enjoy the tax advantages of the HSA. If an HSA owner designates his spouse as the account beneficiary, the surviving spouse will then inherit the HSA upon the owner’s passing. The transfer of the HSA to the surviving spouse is not taxable. Now typically, in order to own an HSA, you must meet certain healthcare plan requirements. If the spouse is named as a beneficiary of the account owner’s HSA, though, those healthcare plan regulations do not apply. Even if the spouse does not participate in a healthcare plan that would typically allow for the establishment of an HSA, they may still enjoy the tax advantages of the deceased owner’s HSA. It’s important to recognize that the surviving spouse will still be subject to the same limitations for additional contributions or future withdrawals. Only to the extent that distributions from the HSA were not used for eligible medical costs will the distributions be taxable. The surviving spouse may name a beneficiary to receive any funds still in the HSA after the death of the spouse, roll over (or directly transfer) part or all of the HSA's account balance into another HSA (or an Archer MSA), and contribute to the HSA through rollovers, transfers, and contributions as long as the necessary conditions are met. If the spouse does choose to withdraw funds from the account to pay for non-qualified medical expenses, they will be forced to pay a penalty of 20% on the withdrawal amount if they are under 65. If the surviving spouse is over 65, they will not need to pay a penalty. They will, however, be on the hook for income tax on any amount that they withdraw. Now, what if the named beneficiary is anyone other than the HSA owner’s surviving spouse? That’s where things get even more interesting. What if the Named Beneficiary is Not a Surviving Spouse? Once it transfers, an HSA only remains an HSA if it transfers to a surviving spouse. If a health savings account (HSA) transfers to an individual who is not the original owner’s surviving spouse, the HSA ceases to exist. When this occurs, the HSA will close on the date of the deceased owner’s death. The beneficiary will receive the assets that were held in HSA, but the funds that are received will be treated as taxable income. Yes, that’s right—the beneficiary is liable for the fair market value (FMV) of the HSA at the original owner’s date of death, plus any interest that might have accumulated after the original owner’s passing. This typically isn’t a bad thing—after all, who doesn’t mind earning more income, even if it means paying more in taxes? But, in some cases, earning additional income could push a beneficiary into a higher tax bracket—meaning that the beneficiary could be on the hook for a larger tax liability than they might have originally anticipated. Now, it’s important to point out that the non-spouse beneficiary does not have to pay any 20% tax penalty for using the funds for a non-qualified medical distribution. The non-spouse beneficiary will only have to report the FMV and interest as taxable income. If you’re the beneficiary of an HSA and are worried about the additional tax liability, don’t worry: there are some ways to lower the taxes. So if you happen to be the executor of the original owner’s estate and are still paying medical bills that the original owner incurred before their death, you can use funds from the owner’s HSA to pay the medical bills. You can do this for any medical expenses that were incurred within a year of the owner’s passing. This might be a smart way to minimize the funds in the HSA and reduce your overall tax liability. Can You Name a Trust as the Beneficiary of an HSA? Yes, it is perfectly valid to name a trust as the beneficiary of a health savings account (HSA). If you own an HSA and either don’t have a spouse or different individual to name as the designated beneficiary, you might consider the option of naming a trust as the beneficiary of an HSA. This is an especially helpful option if you’re considering leaving the funds in an HSA to a minor. Naming a trust as the beneficiary of an HSA will ensure that the funds are set aside for the beneficiary. The funds will be protected from any legal proceedings or guardianship disputes. There is one major drawback to naming a trust as the beneficiary of an HSA: If you do decide to name a trust as the beneficiary of an HSA, the HSA amount will be included as taxable income on your final income tax return. Although that is a drawback, some individuals believe that the protection of a trust outweighs the additional income taxes that will occur. FAQ's about HSAs and Probate We encounter a number of questions surrounding HSAs and probate, so we’ve taken the time to consolidate some of the most common questions here: Can you change an HSA beneficiary more than once? Yes, you can change an HSA beneficiary as many times as you want. There is no limit to the amount of times that you can name beneficiaries. It is important to note that some community-property states require that you obtain spousal approval before you change beneficiaries. The following states have laws that stipulate that you cannot change your HSA beneficiary without first obtaining approval from your spouse: • Arizona • California • Idaho • Louisiana • Nevada • New Mexico • Texas • Washington • Wisconsin If you live in one of those states, watch out! You better be on your spouse’s good side before you try to change the beneficiary of your HSA. I’m a non-spouse beneficiary of an HSA. How do I know the fair market value? If you’re the non-spouse beneficiary of an HSA and are worried about calculating the HSA’s fair market value (FMV), don’t fret—it’s not your responsibility. The HSA custodian—usually a bank, brokerage, or financial institution—will provide a Form 5498-SA to the HSA beneficiary in the same year that the account owner passes away. The HSA custodian must also deliver a Form 5498-SA to the IRS. Form 5498-SA is informational only. The form shows HSA contributions and rollover contributions, and it shows the FMV of the HSA in Box 5. Although it might sound obvious, it’s your responsibility as the HSA beneficiary to make any necessary tax payments once you’ve received the HSA funds. The HSA custodian will not make tax payments on your behalf. I’m a surviving spouse beneficiary of an HSA. Do the HSA funds ever expire? No, HSA funds do not expire. You are not required to use your HSA funds before the end of the year. Your HSA’s whole balance rolls over annually. As the surviving spouse, you get to enjoy the same tax advantages as the original HSA owner. This means that the HSA funds will continue to grow tax-free. In addition, of course, you will also be able to make tax-free withdrawals from the HSA for qualified medical purchases. I want to set up an HSA. Can I name multiple non-spouse beneficiaries? Yes, you can designate multiple beneficiaries on an HSA. Although it’s not a common tactic, some HSA owners do decide to name multiple beneficiaries on their HSA. Most HSA custodian institutions will allow you to allot specific percentages to each beneficiary. For example, you might choose to set up an HSA with 4 beneficiaries and give each beneficiary 25% of the HSA. Or, depending on the situation, you might choose to set up an HSA with 4 beneficiaries and give each beneficiary different amounts: 60%, 20%, 15%, 5%. The original HSA owner passed away but there are still medical bills to pay. Can I use the HSA funds? This is one of the most common questions that we receive when it comes to HSA funds. Yes, you can still use HSA funds for the original owner’s medical bills even after the original owner has passed away. Let’s take a look at an example to see how this might work: Example 1: Bill, a 100 year old widower, had a medical procedure at the end of 2022. At the beginning of 2023, Bill passed away. After Bill’s death, the bill for the medical procedure became due. The cost of the procedure, after insurance, was $2,000. John, Bill’s son and the executor of Bill’s estate, is the named beneficiary of Bill’s HSA. John can use $2,000 from the HSA to pay off the medical expenses. Even though Bill is deceased, this still counts as a qualified medical expense and is a tax-free withdrawal. Now, it’s important to remember that you can only pay for the deceased’s medical expenses that occurred within a year of the deceased’s passing. Let’s take another look at the example of Bill and John: Example 2: Bill had hip replacement surgery in late-2021. It was in the beginning of 2023 that Bill passed away. When looking through Bill’s records, John realizes that the medical expenses for Bill’s hip replacement were not paid. John uses funds from Bill’s HSA to pay off the medical expenses. Unfortunately, though, John has made a dangerous mistake. Only medical expenses incurred within one year of the HSA owner’s death count as a qualified medical expense. Because of this, John will be liable for any penalty that occurs as a result of the error. As the designated beneficiary of the HSA or as the deceased individual’s executor, it’s important to understand the potential ramifications of paying medical bills with funds from the deceased’s HSA. Is an FSA the same as an HSA? No, a Flexible Spending Account (FSA) is not the same as a Health Savings Account (HSA). It’s easy to confuse HSAs with FSAs, but it’s important to distinguish between the two. An FSA (Flexible Spending Account) is an employer-sponsored, tax-advantaged account that allows employees to set aside pre-tax income for eligible healthcare or dependent care expenses. There are different types of FSAs, including Healthcare FSAs for medical expenses and Dependent Care FSAs for childcare or eldercare costs. FSAs are a way to reduce one's taxable income while setting aside money for anticipated out-of-pocket expenses, but they require careful planning as unused funds typically do not roll over to the next year. Unlike an HSA, an FSA is generally \"use-it-or-lose-it,\" meaning that funds must be used within the plan year or they are forfeited. The Bottom Line: Beneficiaries Matter At the end of the day, the most important lesson is that HSA beneficiaries matter.Who you choose as your HSA beneficiary can have major implications on whether the funds go through probate or bypass the probate process. This could mean the difference between HSA funds going directly to a beneficiary or being tied up in what can be a complicated, time-consuming legal process. In addition, you also need to consider the potential taxes that are at stake. Choosing an HSA beneficiary will likely mean that the beneficiary might be on the hook for potential tax liability if the funds are treated as taxable income. Or, if you decide to designate a trust as the beneficiary, the HSA funds will then be attributable to your income tax after you’re deceased. If you already have an HSA, we encourage you to ensure that you have a named beneficiary on the account. That should be the first step in planning for the future. And if you are considering establishing an HSA and are trying to determine who to name as the HSA beneficiary, we invite you to consider the following questions: • Do I want the HSA to go through probate or bypass probate? • Do I understand that naming a non-spouse beneficiary will mean that the beneficiary is liable for additional income taxes? • Do I want to name one beneficiary or multiple beneficiaries? • Do I want to consider naming a trust as the beneficiary of the HSA? These questions will kickstart your planning as you begin the process of establishing an HSA. What’s Next? No matter where you are in the estate settlement process, we’re here to help. Whether you’re currently settling an estate, learning the ropes of being an executor, or just reading about HSAs for your own personal knowledge, our team has put together a toolbox of resources to help you and guide you throughout the way. Here are a few of our most popular tools: • Glossary of all Probate Terms • Checklist of steps to take after someone passes away • Ultimate Guide to Probate vs. Non-Probate Assets And if you want to know more about us, check out how we’re transforming the future of probate and estate settlement. We promise you won’t be disappointed.

What Happens to an HSA When You Die?

While a Health Savings Account can be a helpful investment tool, it’s important to consider where HSA funds will go when the account owner passes away.

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How to Probate a Will Without a Lawyer: 7 Short Steps

Most estates don’t need a lawyer, but that doesn’t mean they aren’t useful or necessary in many estate settlement situations.

If you’re wondering whether or not you can probate a will without a lawyer, the answer is yes — assuming you live in a state that doesn’t require a probate lawyer.&nbsp;The states that require a lawyer, either directly or in effect because you must hire them to complete certain forms, are:&nbsp;<ul id=""><li id="">Hawaii</li><li id="">Missouri for estates over $40k</li><li id="">North Carolina if you don’t live in the same state as the deceased</li><li id="">North Dakota if going through <a href="/articles/how-to-avoid-probate" id="">formal probate</a></li><li id="">Texas except in special situations, e.g. the executor is also the sole beneficiary of the testate estate and there are no debts against the estate<a href="https://guides.sll.texas.gov/probate" id="">*</a>.&nbsp;</li><li id="">Arizona - Can get around a lawyer if you complete a certification and present the Certificate of Completion to the Probate Court<a href="https://www.azcourts.gov/probate/Training/Non-Licensed-Fiduciaries-Training" id="">*</a>.&nbsp;</li></ul>Since most states don’t require a probate lawyer, the majority of probate cases do not require one. Anyone who can engage with the court system can proceed through probate without a lawyer.&nbsp;But…&nbsp; can you probate a will without a lawyer and should you are two different questions. Probate lawyers can be a fantastic resource and are necessary when situations such as beneficiary disputes arise.&nbsp;Atticus Tip: You don’t have to hire a probate attorney for the entire probate process. You can hire them for very specific questions and actions. This helps reduce the amount you spend on <a href="https://www.weareatticus.com/learn/how-much-does-a-probate-lawyer-cost" id="">probate attorney fees</a>.&nbsp;We’re going to cover the basics of probate and show you a bit of what it’s like to go through probate without a lawyer, and we’ll also discuss why you may hire one along the way.&nbsp;<h2 id="">The Probate Process Without a Lawyer</h2><h3 id="">#1 File the will if it exists</h3>Families are required by law to file wills if they exist. The deadlines to file a will vary by state, but filing within a month is generally safe. You should <a href="/articles/how-to-find-out-if-someone-has-a-will" id="">search for a will</a> diligently before accepting that a will does not exist. If a will does not exist, then the estate will be distributed according to <a href="/terms/intestacy-laws" id="">intestacy laws</a>.<h3 id="">#2 See if you can skip probate</h3><blockquote id="">All states have a way to skip or shorten probate if the estate is particularly small. If you qualify for this option, you should take it.&nbsp;</blockquote>To figure out if you can skip probate, you need to:<ol id=""><li id="">Determine what the county or state’s small estate affidavit (or other equivalent) requirements are</li><li id="">Estimate your estate’s probate asset value</li><li id="">Wait for the required waiting period to file for shortened or bypassed probate is up (usually 15-60 days)</li><li id="">Make a specific list of probate assets and collect all other sensitive documents during the wait period</li><li id="">Acquire the appropriate probate forms online or in person and complete them</li></ol>For more information about avoiding probate, have a look at our guide for <a href="/articles/how-to-avoid-probate" id="">How to Avoid Probate</a><h3 id="">#3 Petition the probate court to appoint an executor</h3>Executors have many synonyms including personal representative and administrator, but regardless of the name, the first major step of probate is to have an executor appointed. If a will exists, the executor will most commonly be named there. If there is no will, however, then families should decide who wants to take on the responsibility of being an executor before beginning the petition process with the probate clerk.&nbsp;Either way, the probate courts will then require the person petitioning the court to fill out a few probate forms.What you need to fill out the <a href="/learn/how-to-file-a-petition-for-probate" id="">petition for probate</a> forms:&nbsp;<ul id=""><li id="">A valid last will &amp;&nbsp;testament (if one exists)</li><li id="">Certified death certificate</li><li id="">Clarity on who will serve as the estate executor</li><li id="">Information on any named or known heirs &amp; beneficiaries&nbsp;</li></ul>When you should hire a probate attorney:<ul id=""><li id="">Heirs or beneficiaries contest the validity of the will</li><li id="">If interested parties (including the executor) don’t understand the will</li><li id="">If any beneficiaries dispute aspects or portions of the will</li><li id="">If the probate forms require an attorney’s signature</li><li id="">If you want to pay for someone to manage and make the probate process simpler</li><li id="">If the domicile probate jurisdiction requires an attorney to serve as a <a href="/terms/resident-process-agent" id="">Resident Process Agent</a>&nbsp;for out-of-state executors</li></ul>A few helpful links:<ul id=""><li id=""><a href="/terms/petition-for-probate" id="">Petition for Probate (steps and example form)</a></li><li id=""><a href="/probate/executor-of-estate" id="">Executor Responsibilities (detailed list)</a></li></ul><h3 id="">#4 Notify all heirs and creditors</h3>After an executor is appointed, the probate court will give them forms to fill out to verify that executors have notified all heirs based on the will or based on local laws that say who is considered an heir when someone passes without a will.Another key responsibility of an executor is to file notice to creditors. This is when you reach out to everyone who is owed money by the deceased and let them know they can file a claim to get paid.&nbsp;Important: only assets that are considered probate assets will be used to pay off debts. Some funds can be passed outside of probate and are free from any possibility of being claimed for debt.&nbsp;Read more: <a href="/probate/difference-between-probate-and-non-probate-assets" id="">The difference between probate assets and non-probate assets</a>What you need to know:<ul id=""><li id="">Who the beneficiaries are via the will</li><li id="">If there is no will, who the heirs are according to the local intestacy laws.&nbsp;</li><li id="">How to file notice to creditors</li></ul>When you need a probate lawyer:<ul id=""><li id="">If you think a creditor is filing an unfair claim against the estate.&nbsp;</li><li id="">If you can’t figure out what are considered probate assets and what aren’t.&nbsp;</li><li id="">If you are having trouble figuring out state intestate succession laws</li><li id="">If you want someone to do this for you.&nbsp;</li></ul>Useful Links:<ul id=""><li id=""><a href="/learn/probate-notice-to-creditors" id="">How to File Notice to Creditors (exact steps)</a></li><li id=""><a href="/articles/how-to-read-a-will" id="">How to Read a Will</a></li></ul><h3 id="">#5 Create an estate account, collect probate assets, and build an inventory of assets</h3>After you are an executor and have your letters testamentary or administration in hand, you can control and change all assets owned by the deceased individual.&nbsp;An executor’s duty is to liquidate (turn into cash) any assets as needed, create an estate account to the estate’s money from various sources into, change asset ownership as needed, and create a complete list of probate assets with details on ownership, value, and designation. This inventory is typically delivered to the probate judge and agreed upon by the beneficiaries.&nbsp;What you need:<ul id=""><li id="">An <a href="/learn/is-filing-for-an-estate-ein-necessary-for-probate" id="">EIN number</a> to open the estate account</li><li id="">A spreadsheet or tool to keep track of your inventory</li><li id="">Your letters testamentary or administration&nbsp;</li></ul>When you need a probate lawyer:<ul id=""><li id="">If navigating complicated titling and ownership questions</li><li id="">If you don’t know how to transfer ownership (most bank accounts and things are easy)</li></ul>Useful Links:<ul id=""><li id=""><a href="/terms/letters-testamentary" id="">What are Letters Testamentary</a></li><li id=""><a href="/articles/what-is-an-estate-account" id="">How to Create an Estate Account</a></li></ul><h3 id="">#6 Pay all taxes, debts, and funeral expenses</h3>Executors must pay off all valid debts, taxes, and expenses before distributing any inheritances.What you need and must do:<ul id=""><li id="">Effective accounting of existing probate assets, owed taxes, and owed debts. Executors are personally responsible (and sometimes liable!) for paying all debts and taxes appropriately.&nbsp;</li><li id="">To file the individual’s final tax return&nbsp;</li><li id="">To file an <a href="/articles/what-happens-if-a-deceased-person-owes-taxes" id="">estate tax return</a> (if applicable)</li><li id="">If the estate has more than $600 in gross annual income by the time you file, then you must submit an <a href="https://www.irs.gov/pub/irs-pdf/f1041.pdf" id="">IRS Form 1041</a>.</li></ul>When you need a probate lawyer or tax professional:&nbsp;<ul id=""><li id="">When you aren’t sure if you are paying the right taxes.&nbsp;</li><li id="">When you are confused about certain debts</li><li id="">When you want to contest certain debts&nbsp;</li><li id="">When you have more debt and/or taxes than assets available (or a case of insolvency). Hire legal counsel as soon as possible in these cases.&nbsp;</li><li id="">If you want someone to file the taxes for you and double-check their accuracy&nbsp;</li></ul>Useful Links:<ul id=""><li id=""><a href="/articles/what-happens-if-a-deceased-person-owes-taxes" id="">What Happens if a Deceased Person Owes Taxes?</a></li><li id=""><a href="/articles/burial-alternatives-costs-ultimate-list-of-interment-substitutes" id="">Burial Alternatives + Prices</a></li></ul><h3 id="">#7 Close the estate and distribute inheritances&nbsp;</h3>After all debts, taxes, and expenses have been paid, you submit a final accounting and detailed report of how the remaining assets will be distributed to beneficiaries. Once the probate court approves this, then you need to distribute the assets and may need to submit a final detailed accounting to the probate court demonstrating you’ve followed the plan. At this point, the probate court will help you officially “close the estate”, and you can disable the estate account and consider your job done.&nbsp;What you need and must do:<ul id=""><li id="">An exact idea of who gets what based on the will or local laws.&nbsp;</li><li id="">A detailed list of all accounting and actions taken on behalf of the estate that a probate court and/or judge can easily read. The court will sometimes provide a template for you.&nbsp;</li><li id="">To submit a distribution plan and reporting to the probate court when you’re ready</li><li id="">Submit any other forms the probate court requests</li></ul>When you need a probate lawyer:<ul id=""><li id="">Since this is the make or break point, we generally recommend hiring a probate attorney to check things out, but if you have a simple estate and feel confident in everything, you may be fine.&nbsp;</li></ul><h2 id="">The bottom line on probating a will without a lawyer</h2>Chances are you don’t need a lawyer for probate, but if you have disputes or a larger estate you would certainly benefit from one. If you have a smaller estate, a clear will, few beneficiaries, and good familial relationships, then you will likely be able to get through probate without a lawyer.. That being said, it can still be smart to hire or consult with a probate attorney along the way, even if you aren’t hiring them for a more substantial engagement.

Image of safe deposit boxes at bank with last will & testament inside

What If the Will is in a Safe Deposit Box?

You've looked everywhere and think the will may be in the safe deposit box. What in the world do you do now?

What If the Will is in a Safe Deposit Box? Exact Steps

Locating the deceased’s will is a necessary first step in the beginning of the probate process. Not simply because it’s ethically &amp; morally appropriate to try your best to carry out a loved one’s expressed wishes, but also because it’s a major consideration for the particular <a href="/probate/what-is-probate" target="_blank">type of probate</a> or related probate forms the <a href="/terms/estate" target="_blank">estate</a> will need to file.<h2 id="">Why finding one's will after they pass matters</h2>You should take a pretty exhausting look before calling it quits on finding the will — especially if you are pretty sure they had one. And you want to do this before you <a href="/learn/how-to-file-a-petition-for-probate" target="_blank">petition the probate court</a> to formally begin the probate process.That’s because not finding the will can lead to the estate being distributed according to <a href="/terms/intestacy-laws" target="_blank">intestacy laws</a>, which are the default succession rules that govern how an inheritance is distributed. That usually means anyone who wasn’t a next of kin or immediate heir can lose out on their inheritance, and ultimately ruin any plans the person who created the will (known as the <a href="/terms/what-is-a-testator" target="_blank">testator</a>) had.&nbsp;Getting into a safe deposit box can be a pain, so make sure you’ve exhausted every other option, including:<ul id=""><li id="">Contacting the local clerk of court</li><li id="">Asking other family members and friends</li><li id="">Asking the deceased’s attorney</li></ul>And a few other places you can read more about in: <a href="/articles/how-to-find-out-if-someone-has-a-will" target="_blank" id="">How to Find Out if Someone Has a Will (Where to Look)</a>.&nbsp;<h2 id="">You’ve looked everywhere for the will, so now what?</h2>If you can’t find a will, trust or similar estate planning document, but do know that the deceased had a safe deposit box — then it’s entirely possible that the will could be located within the box. And if that’s the case, you’re going to run into a bit of a catch-22 sequencing wise.&nbsp;Here’s the problem: access to an individual's safe deposit box is essentially “sealed” when they die. And in most states, the <a href="/terms/what-is-an-executor" target="_blank">executor</a> must present the <a href="/terms/what-is-a-will" target="_blank">will</a>, or other court-approved probate form appointing an executor, to the financial institution where the box is located in order to gain access to the box.&nbsp;If the will is inside the safe deposit box, however, the executor will not be able to present the will to the financial institution to gain access to the box. To make matters worse, not having the will also means that the executor is unable to prove the deceased individual’s intentions in naming an executor.&nbsp;All that to say — it can be difficult for an individual to access a will in a safe deposit box before being appointed executor (even though it’s often needed in order to be appointed).Unfortunately, each state’s probate laws are different when it comes to accessing the deceased’s safe deposit box without a will. So while one state might allow you to come and view the items in a safe deposit box without a will or any documents, another state might require that you receive documentation from the probate court before you attempt to open the deceased’s box.For a complete list of safe deposit regulations by state, go to: <a href="/ultimate-guide/safe-deposit-boxes-regulations" target="_blank">Safe Deposit Regulations State-by-State Guide</a>.<h2 id="">What to Do if You Think the Will is Inside a Safe Deposit Box</h2>So you’ve looked everywhere for the will and think it may be inside a safe deposit box. What now? We propose the following two steps before having an executor appointed:<h4 id="">1. Ask the financial institution</h4>If you know where the deceased’s safe deposit box is located, your first step should be to go to that financial institution and ask what their process &amp; procedure rules are on opening the safe deposit box of a deceased loved one.&nbsp;Although the financial institution’s rules will likely be shaped by each state’s laws, each institution might have slightly different requirements for what you need to access a loved one’s box. For example, national banks and local credit unions often have different regulations.The employees at the financial institution will often be able to point you in the right direction for accessing a loved one’s safe deposit box. They might tell you that all you need is a <a href="/articles/who-needs-death-certificates-when-someone-dies" id="">death certificate</a>, and then you’re all set. In other instances, it’s possible the institution has an internal process allowing multiple employees to check the box together (as witnesses) to determine whether a will appears present.And if all else fails, be prepared to hear them say that you’ll need to work with the <a href="/probate-court-directory" target="_blank">local probate court</a> or <a href="/terms/probate-clerk" target="_blank">probate clerk</a> to obtain formal approval, which takes us to the second option.<h4 id="">2. Ask the local probate court</h4>If the financial institution is unable to allow you to view the deceased’s safe deposit box without a will, your next step is to go to the <a href="/probate-court-directory" target="_blank">probate court</a>.The problem of the will possibly being in the safe deposit box is not an uncommon occurrence, and the probate court will be able to assist you in accessing the box.Some states — like New York — the probate court may give you an “Order to Open” document. This document certifies that you are a representative of the estate and have been granted the authority to open a deceased loved one’s safe deposit box. In these instances, the financial institution will accept the court-ordered document’s authority and permit access to open the safe deposit box.In other states — like North Carolina — the Clerk of Court may actually schedule an in-person visit with the financial institution on behalf of the deceased’s estate in order to inspect the contents of the box for the presence of a trust, will, or other related estate planning document.&nbsp;Please note that in these instances, a probate clerk is simply checking for the presence of legal estate planning documents that may change the probate process and is not authorized to discuss or remove other contents from the safe deposit box until an executor has formally been appointed.&nbsp;<h3 id="">A few extra steps, but it's worth the extra time (saved)</h3>Even if you have to jump through a few hoops to open a safe deposit box, it’s still worth taking the time to potentially find a will instead of jumping into probate early or without one.&nbsp;Plus, if you plan on being the executor or <a href="/terms/what-is-an-executrix" target="_blank">executrix</a> once probate begins, there is plenty you can do in advance to keep the process moving, including:<ul id=""><li id=""><a href="/articles/what-happens-if-a-deceased-person-owes-taxes" target="_blank" id="">Understanding what you’re responsible for during probate</a></li><li id=""><a href="/for-families" target="_blank" id="">Starting your inventory of assets</a></li><li id="">Facilitating the distribution of <a href="/probate/difference-between-probate-and-non-probate-assets" target="_blank" id="">non-probate assets</a></li></ul>

Notary sits with executor of estate to validate estate plan will and trust

Notary Fees by State [2023 List]

Notarizations are an important mechanism for deterring fraud, but they come at a cost. Here are the average notary fees and types by state.

Confident female probate lawyer stands smiling in blue jacket holding eye glasses

What is a Probate Lawyer and Should You Hire One? Easy Guide 

A probate lawyer is a state-licensed lawyer who can help the executor, personal representative, or beneficiaries of an estate through probate.

brunette executrix holding pink coffee cup reviewing executor of estate requirements

Who Can Be Appointed the Executor a Will: List and Facts

Most people qualify to be the executor of a will, but who qualifies and who would succeed are two different questions to consider.

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