Step-by-Step Guide to the Probate Process
UPDATED: December 29, 2019
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Probate is the legal process through which the court oversees the estate of a deceased person to make sure the debts are paid and the estate is properly distributed to the heirs. Many people think that probate applies to you only if you have a will. Not so! Your estate will be probated whether or not you have a will.
- With a valid will: Your will determines how your estate is transferred during probate and to whom.
- Without a valid will: (Called dying intestate) The laws in the state where you live specify who gets what parts of your estate.
Think of the probate process as the "script" that guides the orderly transfer of your estate according to the rules. Although the procedure varies somewhat from state to state, generally, certain events must take place.
Swearing in a Personal Representative
In your will, you name the individual you want to be your personal representative or executor (often used interchangeably) — that is, the person in charge of your estate after you die. However, if you die without a will, the court will select a personal representative for you. A family member, such as your spouse or an adult child can request that the court appoints him or her as the personal representative of your estate.
Once the representative is chosen, the court will issue to him or her Letters of Administration or Letters Testamentary (official documentation showing authority to act on behalf of the estate) and require him or her to take an oath of office. The personal representative files a document called a Petition for Probate of will and Appointment of Personal Representative with the probate court. This petition begins the probate process.
If you have a will, the court issues an order admitting the will to probate, basically acknowledging the will’s validity. Some wills require the executor to “post a bond” with the probate court, which guarantees that the executor will take good care of the estate.
Read more about the role of a Personal Representative here.
Notifying Heirs, Creditors, and the Public
Some states require your personal representative to publish a death notice in your local newspaper. This serves as a public notice of your estate's probate and enables people who think they have an interest in your estate (such as creditors) to file a claim against it within a specified time period—usually 3 or 4 months. This makes the matters of your estate part of the public record.
One of the executor’s jobs is to inventory your property, both real and personal, so the estate’s value can be determined. He or she needs to make sure you left enough to cover the debts and distributions to beneficiaries. If there is not enough to cover all the debts, one or more beneficiaries may receive less than you intended or even nothing at all after the debts have been paid off.
The personal representative must collect and inventory the assets to make sure all the property is available for distributing at the end of the probate process. If property is missing or you no longer own it at the time of your death, sometimes replacement assets or the cash equivalent can be used to replace the missing property. It is important to have a good idea of what your estate is worth so you can make intelligent choices for your estate plan. An estate planning attorney should be able to help you with this.
Paying Bills, Taxes, and Distributing the Estate
Although it varies from state to state, payments are typically made in this order:
- Estate administration costs (legal advertising, appraisal fees, personal representative fees, attorney fees, etc.);
- Family allowances (For support of family members);
- Funeral expenses;
- Taxes and other debts (medical bills, etc.);
- All remaining claims; and
- Whatever is left after creditors get their money is distributed to the beneficiaries named in the will. If there is no will, the laws in your state determine how and to whom the remaining property is distributed.
If probate proceeds according to plan and all notices and communications are properly handled, the personal representative is usually protected against any subsequent, late-arriving claims.
Some probate processes can be relatively straightforward, while others can be particularly complicated. It is difficult to give a timeline for that reason. In general, the simplest estates may be probated within 3 months of filing the petition of probate. If there are any complexities, however, such as the will is contested by any of the beneficiaries or property is owned in different states, all bets are off and probate may take anywhere from six months to two or more years.