Probating a Will isn’t always simple, but it doesn’t have to be hard. In fact, many people can probate a Will without using an attorney — as long as they understand the process and have access to the right resources.
So let’s get started. Probate is the process of proving the validity of a Will in court and carrying out the deceased’s wishes expressed in the Will.
What if there’s no Will? The process is essentially the same except that state law determines who the heirs are regardless of the deceased’s wishes.
Now, let’s dive into the four steps you’ll need to take as an Executor to probate a Will:
Have a valid will to probate
Petition the court to accept the will and grant letters testamentary
Process the estate
Finalize the estate
[Need help with probate? We offer helpful probate services and will work with you to find the plan that meets your needs. Learn more.]
Have a valid Will to probate
First things first: you need a valid, signed Will. Many people update Wills or write entirely new Wills over the course of their lives, so the deceased may have several.
Each new Will should have a statement that it cancels all previously created Wills. Thus, the only valid Will is the most recent one.
A valid Will must be signed in compliance with state requirements. That often means it must have been signed by two witnesses. Many states do allow for a "Napkin Will” (often referred to by its formal name: holographic Will)— one with only the deceased’s handwriting and signature. But if you’re dealing with a napkin Will, expect some additional scrutiny.
Petition the court to accept the will and grant letters testamentary or letters of administration
Once you’ve obtained a valid Will, you’ll need to fill out the appropriate probate forms from the court. These forms ask for the court to accept (admit) the Will to probate, if there is a will, and to appoint a person as executor (for a Will) or administrator (when there is no Will). After the court signs the order appointing the executor, the court clerk will issue letters testamentary, which is a document that confirms the executor’s authority to act with respect to estate assets. The equivalent document for an administrator (when there is no Will) is letters of administration.
Unfortunately, probate documents can be confusing and overwhelming, and most courts don’t provide any assistance in understanding them. You can hire a lawyer to help you, but the cost is prohibitive for many. An average probate attorney’s fees range from $3,000-$7,000 for simple estates and tens or hundreds of thousands of dollars for more complex estates. Fortunately, there are cheaper options available, like finding help from a service that charges a flat fee and will help you through the process.
Process the estate
Once the court has received your probate forms and appointed you as Executor of the estate, you will gather all the assets of the deceased, pay any debts (including funeral expenses), pay any taxes due, and distribute assets to the heirs. You must gather assets, diligently discover any debts, and pay taxes before distributing to the heirs.
Keep in mind that you will be required to report your activities to the court and to any interested parties during every step of the probate process.
Finalize the estate
Once you have processed the estate (paid all debts and taxes and distributed all assets), you can close the estate and request the final decree from the court.
You will likely have to submit a closing report to the court that includes an accounting of all debts and assets and your activities as Executor. It is imperative that you keep good records throughout the process so that you are prepared to complete the report.
Once this last step is done, the probate process is complete. While definitely a complicated process, we hope you found this guide helpful in learning how to navigate probate. Now that your work as an Executor is done, don’t forget about your own estate planning measures as well!
Here at Trust & Will, we’re here to help you keep things simple. You can create a fully customizable, state-specific Estate Plan from the comfort of your own home in just 20 minutes. Take our free quiz to see where you should get started, or compare our different estate planning options today!
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