Probate Court is the process of settling a person's Will after their death. During Probate, a court judge determines the validity of the Will and appoints an Executor if one is not listed. The Executor of the Estate then pays all debts, taxes, and fees associated with the Estate and distributes the remaining assets to their intended Beneficiaries. If the Decedent used an attorney to draft the Will, they may also be involved in the Probate process.
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Probate Court is different for everyone. No two people are the same, and no two Wills are the same. If the Estate has just a few assets and little debt, you can expect a more straightforward process. Otherwise, Probate can take anywhere from 9 months to several years. The state you live in, and family dynamics can also play a huge role in how quickly (or not) a Will goes through Probate.
Losing a loved one is hard, but with Trust & Will, settling their Estate doesn't have to be. Here's what you can expect from Probate and how long you can expect it to take:
The probate process can be lengthy and complicated, especially during a time of grief. If this is something you don't want to go through alone, consider getting help from our probate experts. They offer unparalleled support and guidance to simplify the probate process.
Prepare and File Petition for Probate (1 to 4 months):
The first step in beginning Probate is to file a Petition for Probate, including the Decedent's Death Certificate and valid Will. A Will is valid when each Beneficiary signs the Waiver of Process Consent to Probate. This form lets the court know that each Beneficiary agrees to the Will and will not challenge its terms or the appointment of the nominated Executor.
As part of preparing for Probate, the Executor of the Estate must also send an official Notice of Probate. It is not enough to assume that the people who attend the funeral will know of a person's Will or its contents. Each Beneficiary, or "Interested Party," is served with an official Notice of Probate.
Each state has its own requirements for when an Executor must send a Notice of Probate, though it is typically done within the first two months. Some states also require the Executor to publish a notice in the newspaper.
The Executor of the Estate will also issue a Notice of Death to the Department of Health Services if the Decedent was receiving medical benefits.
Give Notice to Creditors (3 to 6 months):
Just as all Beneficiaries must be made aware of a Decedent's Will, so must any creditors. To notify the appropriate creditors, the Executor of the Estate must send a formal Notice to Creditors to any companies, firms, or people to whom the Decedent may owe money. You can find out who a Decedent's creditors are by gathering their paperwork for outstanding bills or requesting a copy of their credit report to identify creditors.
Pay Debts and Fees (6 to 12 months):
After notifying the Decedent's creditors of their passing with a formal Notice of Death and Notice to Creditors, the Executor is responsible for paying all personal and professional debts from their Estate. An Estate must also pay state and federal income taxes before the closing of an Estate.
In addition to personal debts and inheritances, the Probate process itself costs the Estate money. The Executor is responsible for paying all fees and administrative relating to Probate. These fees increase based on how long a Will is in Probate, so it's financially savvy to do what you can to ensure a quick process.
Inventory Assets (6 to 12 months):
An inventory of one's assets is a critical part of any Will, as it becomes part of the official Estate record. It is also one of the most time-consuming tasks when preparing a Will or seeing one through Probate.
The Inventory of Assets can include:
Property and real estate
Bank accounts, including checking and savings accounts
Stocks and bonds
Luxury items, like jewelry, an art collection, or anything of significant value
Intellectual property, including any copyrights, trademarks, patents, software databases, and design rights
Not all assets, however, are subject to Probate. Jointly owned property, real estate, vehicles, and financial accounts automatically transfer to the surviving owner(s). You may also skip Probate on life insurance policies and IRAs that have a Beneficiary or Pay-on-Death Designation.
Distribute Assets (9 to 18 months):
Taking stock of the assets and distributing them to their intended Beneficiaries are two separate parts of Probate. Some state Probate laws dictate that the distribution of assets wait until after the Probate hearing. That way, there is no time for an ungrateful Beneficiary or scorned family member to threaten the validity of the Will.
Probate Court requires that an Executor of an Estate make every effort to pay all outstanding debts before asset distribution.
Close the Estate (9 to 24 months):
Probate concludes once all creditors are paid, taxes filed, and assets distributed or sold. Once the Executor has successfully completed their duties, a Probate Court judge will issue the Final Order for Discharge of Personal Representative, officially closing the Estate.
Is Probate Necessary?
All Wills go through Probate Court, but that doesn't mean it is your only option. Going through Probate isn't always necessary. There are other ways to protect your plans for the future and loved ones without taking up precious time or potentially putting your family at odds with each other.
A Trust allows a Testator, or person creating the Trust, to designate an Executor to manage their Estate and make personal and legal decisions on their behalf in the event of death or incapacitation. It also allows your assets to pass seamlessly to your Beneficiaries while avoiding Probate Court. Having a Trust legally communicates your last wishes so the ones you love most aren't left wondering or relying on the decisions of a Probate Court judge.
Pre-Death Probate, or Ante-mortem Probate, allows you to take on the role of Probating your own Will before death. Unfortunately, it is a practice only currently valid in four states—Ohio, Arkansas, North Dakota, and Alaska—though there has been a push to expand in recent years.
Trust & Will makes it easy to customize an Estate Plan that works for you and your unique needs. Perhaps you want to create a Will online outlining your medical wishes or designating a Legal Guardian for your beloved pooch. Or, you may wish to provide for your loved ones after death in a way that avoids the Probate process entirely with a Trust.