What Is The Probate Process?
“Probate” might sound intimidating, but it’s simply the process through which you seek authority from a court of law to act as the official representative of the estate. Once you’ve obtained that authority, you will be able to investigate what assets the deceased owned, what debts they owed, and how much their heirs will receive.
Steps Of The Probate Process
The probate process follows a fairly straightforward process. While each case may differ in the details, the basic process is the same.
1) Petition the court to become the legal representative of the estate
2) Notify heirs and debtors
3) Change legal ownership of assets from the deceased individual to the "Estate of [The Deceased]"
4) Pay funeral expenses, taxes, debts, — and then transfer assets to heirs
5) Notify the court of your actions and close the estate
A Detailed Explanation of Each Step
1) Petition the Court
In order to start the probate process, you will need the following:
- Probate Petition
- Death certificate
- Valid will (or know for sure that there is no will if none exists)
The probate petition is a specific set of probate forms the court requires to open an estate. The petition tells the court who died, who is applying to be the executor (if there is no will administrator), who the heirs are, and what general assets are known at that time.
A valid will is the most recent will with original signature(s). When a person revises their will, the new will automatically cancels all previous wills. Thus the most recent will is the only valid will. It is important to note that only physical proof of a will is accepted in court. Neither verbal instructions nor general knowledge of a different will serve as evidence a court will consider. Photocopies of a will may be considered by the court but will require extra forms.
What if there is no will?
The probate process without a will is relatively similar. Differences will show up in the actual substance of the estate transfer, like who can be the administrator and who will inherit assets from the estate. When someone dies without a will, the process is called “Intestate.” State laws determine priority of who can serve as administrator of the estate and who will inherit assets.
The general priority in both instances follows this sequence:
- surviving spouse
If there is no immediate family then extended family becomes priority. Learn more about Interstate Succession here.
The executor or administrator does not need to know exactly what the deceased owned when filing the Petition for Probate. At this early stage, an estimate of the estate’s total value is sufficient. Once the estate is open, the executor or administrator will have the ability to determine the exact assets and debts of the estate.
For the court to accept the petition and grant the official appointment, the court requires that all interested parties (heirs, family, etc) consent to both the petition and the will. Parties do this by signing the petition documents. If anyone refuses to signor wants to fight the petition, a court hearing will be scheduled. In the court hearing, the contestants must provide proof why either the nominated individual should not become executor or administrator or why the will should not be allowed.
Note that every state has a simplified procedure for estates that meet their “small estate” definition (Each state defines a small estate differently, ranging from $5,000-$150,000). However, you must file the correct petition to qualify for the simplified procedures.
2) Notifying Heirs, Creditors, and Interested Parties
The next step in probating a will is to notify all parties of the current probate process. Initially, the court only requires for proof of notification for heirs (will or intestate) and any interested party.
An interested party is anyone that has an interest in the estate (heir) or anyone who files with the court as an interested party. Note that an interested party doesn't have to be a relative. They only have to have filed with the court that they want to know what is happening.
There are two types of notices that must be sent: (1) the notice that a petition has been submitted and (2) the notice that an appointment has been made. Some courts require certified mail; others simply require you to certify that you mailed the notices.
To send out notices, you must know how to contact all involved parties and gather their contact details. We recommend doing a credit report to obtain all the creditor's information and debts. For family members, reach out to all known family. For all others, consider doing Google searches. etc. If you aren’t able to find someone after exhausting all reasonable efforts, you will need to contact the court and may have to turn funds over to unclaimed property.
3) Changing Legal Name Of Assets
After the appointment and the notifications you will need to change the name of all the assets from the deceased to the "estate of". Bank accounts and investments are usually the easiest. With the letters of testamentary / administration (official court papers that grant the administrator legal authority) you can instruct all bank/investment accounts to change title. You will need a tax id number, learn how to get a Tax ID.
Physical property (real estate, cars) will require a title/deed change. Note if you are going to sell any real property you can skip this step, and simply sell the property and the estate will receive the proceeds. Changing title can be handled at the close of the transaction. If however the estate will keep/own the asset than a legal change in title is required.
Typically 3 months after the appointment you will need to provide the court with an initial inventory of the estate. This doesn't have to be 100% final. Although at this stage you will have gathered assets and have a pretty good understanding of what is in the estate.
4) Paying Creditors, Taxes, Expenses and Heirs
It is very important that you do not pay any funds to heirs until you have paid all estate expenses or know for sure that you have sufficient funds to pay all expenses. The priority in payments is as follows:
- Funeral Expenses
- Taxes (Federal, State, Local)
- Estate expenses
Note if the estate will take time to settle due to complexity of assets, you can petition the court to set aside funds for spouses and minor children. After funeral expenses, creditors, and taxes are known and either paid or funds set aside; you can pay funds to the heirs.
5) Reporting To The Court and Closing The Estate
The last step in probating a will/estate is to inform the court what you have done and petition the court to close the estate. This step involves providing a final accounting (some courts provide a template, others require you to do it all yourself) which informs the court of all the assets gathered, expenses incurred, and assets distributed to heirs. Should any assets be left in the estate, the final petition asks the court to grant a final distribution and accept the accounting.
Note that interested parties must be either notified and/or accept the final accounting. Additionally proof of distribution is also needed, often it is just an acknowledgment from heirs that they have received assets.
Suggested further readings
LegalZoom: The Probate Process: Four Simple Steps