Probate is the legal process through which a deceased person’s estate is administered under court supervision. The court validates the will if one exists, appoints an executor or personal representative, oversees creditor claims, and authorizes asset distribution to beneficiaries. Understanding each step helps families know what to expect during a process that typically takes six months to two years.
Our friends at Sahyers Firm LLC guide executors and families through this court process regularly, helping them meet deadlines and fulfill legal requirements. A probate lawyer can represent executors during probate or help families understand their rights as beneficiaries waiting for inheritance.
Step 1: Filing the Petition
Probate begins when someone files a petition with the probate court in the county where the deceased person lived. The petitioner is typically the person named as executor in the will or a close family member if there’s no will.
The petition includes the original will if one exists, a certified death certificate, and information about the deceased’s assets and heirs. Filing fees vary by jurisdiction but typically range from a few hundred to several hundred dollars.
The court sets a hearing date to consider the petition. Notice of this hearing must be published in local newspapers and sent to all beneficiaries named in the will and heirs who would inherit under state law if no will existed.
Step 2: Appointing the Executor
At the initial hearing, the court reviews the will’s validity and appoints the executor named in the will as personal representative of the estate. If no will exists, the court appoints an administrator, typically a surviving spouse or adult child.
The court issues letters testamentary or letters of administration, which are official documents proving the executor’s authority to act on behalf of the estate. Financial institutions, government agencies, and other parties require these letters before allowing the executor to access accounts or conduct estate business.
Most states require executors to post a bond guaranteeing faithful performance of their duties. The bond protects beneficiaries if the executor mismanages estate assets. Wills often waive the bond requirement for named executors, eliminating this expense.
Step 3: Notifying Creditors and Beneficiaries
The executor must notify known creditors of the death and probate proceeding. This includes mortgage companies, credit card issuers, medical providers, and anyone else the deceased owed money.
Published notice in local newspapers alerts unknown creditors. State law sets deadlines for creditor claims, typically between three months and one year from publication or notification.
Beneficiaries named in the will receive formal notice of the probate proceeding and their rights. Heirs who would inherit if no will existed also receive notice, even if the will disinherits them.
Step 4: Inventorying Assets
The executor must locate and inventory all probate assets. This includes real estate, bank accounts, investments, vehicles, personal property, and business interests titled in the deceased’s individual name.
Assets with beneficiary designations like life insurance and retirement accounts typically pass outside probate and don’t need to be inventoried for probate purposes. Joint tenancy property with right of survivorship also transfers automatically to surviving owners.
The executor obtains appraisals for real estate, valuable personal property, and business interests. According to the National Association of Estate Planners, accurate valuations are necessary for tax purposes and equitable distribution among beneficiaries.
A formal inventory listing all assets and their values is filed with the probate court. This inventory becomes a public record accessible to anyone interested in the estate.
Step 5: Managing Estate Assets
During probate, the executor manages estate property to preserve value. This might include maintaining real estate, collecting rent, making investment decisions, running businesses, or selling assets that need immediate liquidation.
The executor opens an estate bank account using the estate’s tax identification number. All estate income and expenses flow through this account, creating a clear paper trail for accounting purposes.
Ongoing obligations continue during probate. The executor pays mortgages, property taxes, insurance premiums, and utility bills to prevent foreclosure, tax liens, or property deterioration.
Step 6: Paying Debts and Taxes
After the creditor claim period expires, the executor reviews all filed claims and determines which are valid. Valid claims are paid from estate assets in order of priority established by state law.
Typical payment priority:
- Funeral and burial expenses
- Estate administration costs
- Federal taxes owed
- State and local taxes
- Medical expenses from final illness
- Secured debts like mortgages
- Unsecured debts like credit cards
If insufficient assets exist to pay all claims, higher priority creditors are paid in full before lower priority creditors receive anything.
The executor files the deceased’s final income tax return covering January 1 through the date of death. If the estate generates income during probate, the executor files annual estate income tax returns.
Estate tax returns might be required if the estate exceeds federal or state exemption amounts. These complex returns typically require professional tax preparation and are due nine months after death.
Step 7: Petitioning for Distribution
After paying all debts, taxes, and administrative expenses, the executor petitions the court for permission to distribute remaining assets to beneficiaries. This petition includes a full accounting of all receipts and disbursements during estate administration.
The accounting shows every dollar that came into the estate and how it was spent. Beneficiaries receive copies and can object if they believe the executor mismanaged assets or made improper payments.
If no one objects to the accounting, the court schedules a hearing to approve distribution. Beneficiaries who agree with the accounting can sign waivers eliminating the need for a formal hearing.
Step 8: Distributing Assets
Once the court approves distribution, the executor transfers assets to beneficiaries according to will provisions or state intestate succession laws. Real estate is deeded to beneficiaries. Personal property is physically delivered. Cash and securities are transferred to beneficiary accounts.
The executor obtains receipts from beneficiaries acknowledging receipt of their inheritance. These receipts protect the executor from later claims that distributions weren’t made.
Some wills create testamentary trusts that hold certain beneficiaries’ inheritances rather than distributing them outright. The executor establishes these trusts and transfers the appropriate assets into them.
Step 9: Closing the Estate
After all distributions are complete, the executor files a petition to close the estate. This petition includes proof that all assets were distributed, all debts were paid, and all tax returns were filed.
The court issues an order closing the estate and discharging the executor from further duties. This formal closure protects the executor from future claims and officially ends court supervision.
The entire process typically takes six months to two years. Simple estates with no disputes, no estate taxes, and cooperative beneficiaries close faster. Complex estates with business interests, real estate in multiple states, or family disputes take longer.
Variations by State
Probate procedures vary significantly by state. Some states offer simplified procedures for small estates below certain value thresholds. Others have streamlined processes for estates with no will contests or creditor disputes.
Transfer-on-death deeds, joint ownership, and trust-based planning help avoid probate entirely in all states. The cost and delay of probate make these avoidance strategies attractive for many families.
Getting Through the Process
Probate serves important purposes including creditor protection, court oversight preventing executor fraud, and orderly asset distribution. However, the public nature, time delays, and costs make probate less desirable than alternatives for many families.
We help both executors administering estates through probate and families planning to avoid probate for their own estates. Whether you’re facing the probate process now as an executor or beneficiary, or planning ahead to minimize probate for your heirs, understanding the process and available alternatives helps you make informed decisions. Proper advance planning can eliminate or significantly reduce probate requirements, saving your family time, money, and stress during an already difficult period.
