Everything You Need to Know About the Probate Process

Probate is usually as easy – or as painful – as the deceased person’s estate is organized or disorganized.  When a person shares a comprehensive last will and testament before they pass away, and shares information about their financial contacts and accounts, probate can be much streamlined for the surviving family.

What is it?

Probate is the legal process of finding, valuing, and distributing the deceased’s property. It also entails settling any remaining debt.  Having a last will makes this process easier as the decedent’s wishes are spelled out, therefore, the court would distribute their assets in accordance with their last will and testament.  Where there is no will, the estate of the deceased is then decided solely as provided by the statutes in that state.  This is called intestate.  Regardless of whether the decedent has a last will or not, all estates must go through the probate process. In most states, this is handled at the county level.  The probate process also formally appoints an executor or personal representative (if the will did not already specify one), who will be responsible for distributing the decedent’s assets to the intended recipients and taking care of debts.

When do you need to go through the probate process?

Sometimes people structure their last will and assets in a way that does not require going through the probate process.  Assets that usually do not go through the probate procedure are joint tenancy property, proceeds from life insurance, property in living trust, and household property that goes to immediate family under the laws of your state.  States also allow wills to be executed without the probate process if the total value of the estate is under a certain amount, set by the state.  If the value of the estate exceeds the limit set by the state, a probate process is necessary; however, the values vary greatly from state to state.  Similarly, some states offer a simplified probate procedure for lower-value estates.  (To minimize or even avoid the probate process, use our combined living trust and pour-over will.)

The Probate Process

If after consulting your state’s laws you must begin the probate process, there are several steps you must take.  The first is to gather the required documents, such as the decedent’s last will, any codicils (amendments to the will), and copies of the decedent’s death certificate.  You will likely also need documents regarding the decedent’s tax returns and critical banking information, the decedent’s insurance policies and financial contacts’ information (such as accountants, money managers, etc).

The next step is to check the deadline in your local probate court – a court that hears probate proceedings.  Many states do not have any deadline to begin a probate proceeding, but others require proceedings begin within a certain number of months or years of the decedent’s death.  Missing the deadline can create a gigantic legal mess (as you might imagine).

The court will name someone as the executor of the estate, usually the person named in the last will document itself.  In the event that no one was named executor in the will or the named executor has died, the court will determine who will serve as executor of the estate and will give that person the right to take care of the estate affairs.  When someone dies intestate (without a will), the state will allocate the assets in accordance with state intestacy law, which varies from state to state.  Some states require the executor to post a bond, which protects the estate from certain losses caused by the executor.  The executor must also prove the will’s validity, which is commonly done by providing statements from witnesses to the will (usually in the form of a “self-proving affidavit”).

The executor/personal representative will then notify creditors of the decedent’s death, and some states require that the executor notify the public as well.  This usually entails filing a public notice which sets a specific time frame for members of the public who think they may have an interest in the estate to file a claim.  It is also the executor’s responsibility to inventory the property in the estate, dividing it between personal property and real property or real estate, in order to assess the value of the estate.  The executor will then make sure there is enough to pay the decedent’s debts and distribute the assets in accordance with the will.  If there is not enough to fully pay creditors and also distribute assets to the beneficiaries, the beneficiaries may receive less than the decedent intended.

Once creditors have been paid and the property has been distributed to beneficiaries the estate can be closed by submitting a “final accounting” with the court, and lastly filing a “closing statement” that states that all debts and taxes have been paid and the property has been distributed.