What Is Probate & How Does It Work? (2024)

The exact steps of the probate process can vary depending on state rules, but typically include the following:

• Probate initiation. A death certificate is presented to the court, along with paperwork to initiate the probate proceedings
• Will filing. The decedent’s will is filed with the court, if a will existed
• Will validation. The court examines the will to determine if it is legally valid
• Executor appointment. An executor or estate administrator is appointed to oversee the probate process. If the decedent created a will and named someone as executor, the court will generally appoint this chosen person, assuming they are fit to serve as executor
• Asset identification. The executor identifies the assets of the deceased
• Asset valuation. A valuation takes place (if necessary) to determine the total value of the estate (which will, in turn, determine the amount of estate tax, if any, that will be assessed)
• Creditor notification. Notification is provided to creditors who may have a claim against the estate
• Beneficiary notification. Beneficiaries (those who will potentially inherit) are notified
• Debt payment. The executor pays the decedent’s debts out of the estate assets in accordance with probate laws
• Asset distribution. Remaining assets are distributed to beneficiaries in accordance with the decedent’s wishes laid out in the will.

If there is no will, most of the steps in this process are similar but the court appoints a personal representative who fulfills the role of executor. Assets will also be distributed according to intestacy laws, rather than in accordance with the decedent’s wishes in a will. Intestacy laws ensure that assets are distributed to close family members, such as spouses and children.

Probate With a Will

Here’s an overview of what you can expect when probating an estate with a will.

Initiating the process

When a person with a will (known as a testator) passes away, the named executor files the will and the death certificate with the probate court. The primary responsibility of the court at this point is to confirm the will’s authenticity, ensuring it conforms to legal standards and genuinely reflects the deceased’s wishes.

Official appointment of the Executor

Once the will is validated, the court formally appoints the executor mentioned in the will. In cases where the will doesn’t specify an executor or the named executor is either unwilling or unable to perform the role, the court picks a fitting estate administrator.

Taking stock of assets

The executor then catalogs all assets of the deceased. These include digital assets (cryptocurrencies), real estate, vehicles and other titled assets owned solely by the decedent.

A crucial component of this stage may include appraising the assets, especially if the estate has tax implications or some assets need to be liquidated to clear debts.

Creditor notification

The executor must inform all known and reasonably inferable creditors of the deceased about the death.

This notification can be done through direct contact, publishing a ‘Notice to Creditors’ in newspapers or a combination of both. Keep in mind that each state has its own specific deadline for creditors to file claims against the estate once they’ve been informed of the death.

Settling liabilities

The executor uses the estate’s assets to settle all legitimate debts, bills and taxes. They will also file the last personal income tax return on the decedent’s behalf.

If the executor contests any creditor’s claim, the creditor can appeal to the court, which then assesses the claim’s legitimacy.

Asset distribution

Once all debts are addressed, the executor then seeks the court’s permission to distribute the remaining assets to the beneficiaries. The will serves as a guiding document at this stage, directing the executor to distribute the assets in sync with the departed’s last wishes.

Closing the estate

Once all obligations are fulfilled, the executor requests the court to formally close the estate. This final step marks the completion of the probate process and the duties of the executor.

This paints the general trajectory of probate process when a will exists, ensuring that the deceased’s final wishes are met every step of the way.

Probate Without a Will

In instances where an individual passes away without a (valid) will, they’re said to have died “intestate”. The journey through probate here has some parallels with that of having a will, but with some differences.

• Appointing an estate administrator: If there’s no will specifying an executor, the probate court steps in to make that choice. Often, the decedent’s immediate family, such as a surviving spouse, children or parents, are given priority.

However, there are certain caveats: an individual might be deemed unsuitable if they’re under 18 or have a past criminal record. In some states, such as Texas, if the personal representative isn’t a state resident, they are required to appoint an in-state agent who serves as a local point of contact and accepts legal documents and notices on their behalf. If no suitable or willing individual emerges, the court then enlists a neutral third-party as the estate administrator.

• Handling estate assets and affairs: The court appointed administrator locates the decedent’s probatable assets and legal heirs, gauges the value of the assets and notifies the creditors of the passing. They will also settle outstanding debts, bills and taxes.
• Distributing assets: In the absence of a will specifying the estate’s beneficiaries, the administrator turns to the state’s intestate succession laws to figure out who the legal heirs are.These laws typically favor spouses, children, and close kin, but specifics can differ greatly across states. After locating the heirs, the administrator divides the assets as per the local intestate succession laws.

As you can see, a lack of will grants the state significant influence over asset distribution.