What Is Probate and the 10 Things a Personal Representative Must Know

Probate is the legal process of transferring property from a deceased person's ownership to another person, typically the heirs or beneficiaries named in a will. If there is no will, the court follows state intestacy laws to determine who inherits. In Maryland, Virginia, and the District of Columbia, the specifics vary, but the fundamentals remain the same.

Being named a personal representative, whether as executor of a will or administrator when no will exists, is a significant responsibility. The role carries legal obligations, financial duties, and fiduciary responsibilities that cannot be taken lightly. Here are the 10 things every personal representative must know.

1. The Probate Process Is Court-Supervised

Probate is not an informal handoff of assets. It is a court-supervised process. The court validates the will, appoints the personal representative, oversees the inventory of assets, and ensures debts and taxes are paid before distributions are made. In Maryland, straightforward estates go through administrative probate handled by the county Register of Wills. More complex cases may require Orphans' Court involvement.

2. Your First Task Is Identifying Assets

The personal representative must locate and inventory all estate assets. This includes real estate, bank accounts, investments, personal property, and any other assets the decedent owned. A thorough inventory is the foundation of the entire probate process.

3. Debts and Taxes Come Before Distributions

Before any beneficiary receives a dime, the estate must pay valid debts and taxes. This includes mortgages, credit cards, medical bills, funeral expenses, and any applicable estate or income taxes. Maryland, Virginia, and DC each have different estate tax thresholds and rules.

4. You Have a Fiduciary Duty

The personal representative owes a fiduciary duty to all beneficiaries. This means you must act in the best interests of the estate, not yourself. You cannot favor one beneficiary over another, and you must avoid any self-dealing or conflicts of interest. Violating this duty can result in personal liability.

5. Court Approval May Be Required for Sales

If the estate includes real property that needs to be sold, the court may need to approve the transaction. This is especially true in contested estates or when the will does not explicitly grant the power to sell. The terms of sale must be acceptable to the court and documented properly.

6. The Small Estate Threshold Matters

In Maryland, estates valued at $50,000 or less ($100,000 if the spouse is the sole heir) qualify as small estates and are eligible for simplified distribution. Virginia has a similar threshold at $50,000. If the estate falls below these thresholds, the process is significantly less complex.

7. You Need to Secure and Maintain Assets

As personal representative, you are responsible for protecting estate assets. This means maintaining insurance on real property, securing vacant homes, preserving bank accounts, and taking reasonable steps to prevent loss or deterioration. Failing to do so can result in personal liability.

8. Record-Keeping Is Critical

Keep comprehensive files on all estate bank statements, canceled checks, and receipts. Maintain records of estate income, expenses, asset allocations, and deposits. The court may require an accounting, and beneficiaries are entitled to transparency. Good records protect you as much as they serve the estate.

9. The Timeline Varies by Jurisdiction

Probate timelines depend on the complexity of the estate, the jurisdiction, and whether there are disputes. Some estates close in months; others take years. A case diary, tracking key events and dates pertaining to the probate case, helps keep everything on schedule.

10. Professional Guidance Is Not Optional

The probate process involves law, accounting, real estate, and sometimes construction or property management. No single person understands all of it. Work with a probate attorney, an accountant, and a real estate specialist who understands probate transactions. The cost of professional guidance is far less than the cost of mistakes.

If you are facing probate in Maryland, DC, or Virginia and need guidance on selling estate real estate, reach out for a consultation. Marc Cormier specializes in the exact transactions that probate demands, and he has guided hundreds of families through the process.