POV: You have been named Executor in the Last Will and Testament of a loved one who passed away. As the Executor, you are now responsible for spearheading the probate process.
If this is your first time managing the probate process for a loved one’s estate, then it can be tricky to navigate. Further, the laws that govern probate vary from state to state, meaning that the rules and processes can be different depending on where you file. With any complex process, it is helpful to break it down into smaller, achievable tasks. We’ve gone ahead and done that for you by listing out the general probate steps to follow.
What Are the Steps of Probate?
Probate is a legal process that addresses the estate of a deceased individual. Its objective is to ensure that any outstanding debts and taxes are paid, and that ultimately any remaining assets are distributed to beneficiaries and/or heirs. An estate can include the decedent’s property, including personal belongings and real estate, as well as financial assets. That is, any assets and property that were not placed in a Trust or otherwise are not subject to probate. (Learn about non-probate assets here.)
From start to finish, probate can take anywhere from a few months to over one year. It passes through several stages, with each one needing to be completed and approved by the assigned probate judge before the case can continue on to the next one.
Probate laws vary from state to state, so there are nuances in how probate is conducted in each jurisdiction. However, the following provides a general sense of probate states that are followed:
Step 1: Petition is filed to begin the probate process
Step 2: Notice given
Step 3: First probate hearing
Step 4: Inventory of estate assets
Step 5: Estate asset distribution plan is created and submitted to court
Step 6: Estate assets are bestowed
We will provide an overview for each of these steps in the respective sections below.
Step 1: Petition is filed to begin the probate process
Upon locating the Will of the decedent, your very first step will be filing a petition with your respective probate court. This petition is essentially performing three key functions:
Requesting to admit the Will to probate
Requesting to formally appoint you as the Executor on behalf of the estate
Requesting to launch the probate process
Here, you should note that while you may have been named as the Executor in your decedent’s Will, you cannot legally perform any of your functions until you are formally appointed by the court. For this reason, you should file this petition as soon as possible to prevent any further delay.
Further, the probate process will not begin until the court is notified of the decedent’s death in the form of this petition. It must be initiated by someone, typically the Executor, in order for it to begin.
Can’t find a Will? There are cases in which a loved one will pass away without having had a Will in place. Here, the probate process is usually still required. Instead of filing a petition to probate the Will, you will file a petition to probate the estate intestate and request that the court appoint you as the Personal Representative, which is similar to the Executor role.
Step 2: Notice given
Once the court accepts your probate petition, they will issue the first hearing date. Upon receiving this date, you must take the important step of publishing and providing notices regarding the hearing.
These notices are sent out to known heirs, beneficiaries, and creditors. Further, you must publish public notices in the local newspaper, typically a minimum of three times.
This important step ensures that any known and potential interested parties of the estate are notified of the probate hearing. They are provided with a fair opportunity to file a claim against the estate as needed.
Step 3: First probate hearing
Next, you will attend the first scheduled probate hearing. If all goes smoothly, then the judge will verify that the Will is valid and will admit it to probate. They will also formally appoint the Executor (alternatively, the Administrator/Personal Representative) of the estate.
However, there can be cases in which challenges can result in delays. For instance, an heir or other interested party in the estate could challenge the validity of the Will. Further, they may even contest the contents of the Will.
While this may sound stressful, as long as your petition is valid and truthful, then most likely the petition will go unchallenged and the hearing is mostly a formality.
Step 4: Inventory of estate assets
Next comes the stage during which the Executor or Personal Representative must create an inventory of the estate’s assets and property, including a valuation of each line item. Examples of probate assets include (but not limited to) real estate, financial accounts such as bank accounts and investments, cash, the decedent’s personal belongings, intellectual property, vehicles, boats, and pets. Learn more about what constitutes probate assets (and what doesn’t) here.
As the Executor, you are legally responsible for managing these assets and preserving their value as best as you can. For instance, if the decedent owned a home, then you must within reason secure it and monitor it to help prevent theft or vandalism. Preserving estate property is important because the objective is to pass on as much value as possible to the estate’s beneficiaries.
During this step you will also identify creditor debts and disclose them to the court, including any creditor claims that are filed as a result of your probate notices.
Step 5: Estate asset distribution plan is created and submitted to court
An estate asset distribution plan refers to a comprehensive strategy outlining how the assets of a deceased individual's estate will be distributed among the beneficiaries and heirs.
The estate asset distribution plan typically involves several key steps. First, all debts, taxes, and expenses of the estate are settled. This may include paying off outstanding debts, filing tax returns, and covering administrative costs. Once these obligations are fulfilled, the remaining assets can be distributed among the beneficiaries.
The distribution plan takes into account the provisions outlined in the decedent's Will. It specifies how each asset, such as real estate, financial accounts, personal belongings, and investments, will be allocated among the beneficiaries and heirs. The plan may also consider any specific bequests or instructions left by the deceased regarding the distribution of certain assets.
If there is no valid Will or if certain assets are not addressed in the Will, the distribution plan will follow the laws of intestate succession, which determine the distribution of assets among the closest surviving relatives based on the jurisdiction's laws.
Step 6: Estate assets are bestowed
Last but not least comes the final stage of probate: bestowing any remaining estate assets to the estate’s beneficiaries and/or heirs.
After creditors have been paid, and any taxes resulting from tax filings have been satisfied, then the Executor will be authorized by the probate court to distribute remaining assets per the decedent’s wishes. The Will typically names beneficiaries and instructions regarding their inheritances.
If a Will isn’t available, then intestacy laws will dictate next-of-kin rules to identify heirs of the estate, as well as how assets should be distributed.
Some assets may require some extra paperwork in order for ownership to be transferred. For example, a new deed may need to be drawn up for real estate.
To close the probate process, the Executor must also provide a final accounting of the estate to the court.
Learn More About the Probate Process in Other States
This guide provided a general overview of six probate steps that help illustrate what the probate process entails. As an Executor or Personal Representative of an estate, one of your key responsibilities is to understand the probate laws and processes in your respective jurisdiction. This is because probate laws are governed by the states, and not at the federal level. Because of this, the specific rules and procedures can vary from state-to-state.
Here are some of our guides that detail state-specific probate processes:
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