Most people have heard the term “probate,” but you may be uncertain about what it really means and how it works. Below you’ll find basic information about the probate process, including explanations of relevant terms, a description of five possible ways to probate a will, and a brief discussion of the main steps involved.
What is Probate?
Probate is the court-supervised process of distributing a deceased person’s estate, including all of his or her assets, both real and personal property. Any real property (real estate, buildings, or other fixed items) or personal property (jewelry, clothes, or other movable things) that does not pass directly to beneficiaries (such as through a living trust) must go through the probate process.
Accordingly, it is important to note that having a last will and testament does not avoid probate. In fact, one of the main functions of probate is to carry out the provisions of last wills.
Note, as well, that probating a will becomes part of the public record, which means that anyone can look up and find out specifics after the fact.
How to Probate a Will
The probate process varies by state, with some jurisdictions having simplified procedures for smaller estates and other nuances. Because of these differences, there are at least five ways to probate a will across the country, but be sure to check with your state’s probate law for more specifics regarding your situation.
1. Formal Probate: Full court-supervision over the probate process, roughly following the procedure, as discussed below.
2. Informal Probate: Some jurisdictions permit the executor of the will to file paperwork and avoid having the court get involved after the initial appointment of a personal representative. Informal probate is available in states that have adopted the Uniform Probate Code (UPC) and include Florida, Massachusetts, Michigan, and New Jersey.
3. Affidavit: Where the value of an estate is below a certain amount, some states allow assets of an estate to be distributed without involving the probate court through a simple affidavit executed by the person(s) entitled to receive the probate property. New York, for example, uses the Small Estates Affidavit (S.C.P.A. Section 1310) form.
4. Summary Administration: This abbreviated process may be available in some jurisdictions, such as Florida when an estate’s value is below a certain amount. As the name suggests, it often takes much less time (and fewer documents and hearings) to complete than formal probate.
5. Set Aside: If an estate is below a certain value, some states such as California permit the entire estate to be “set aside” and paid directly to the surviving spouse and/or minor children.
Again, it is important to remember that probate law varies by state, including terms used and procedures followed.
Steps to Probate a Will
In most instances of probating a will through the formal process, there are some fundamental steps involved, which include the following:
1. Petition. The first step to opening an estate to probate is for the executor of the will to file a petition with the probate court in the deceased person’s county of residence. A probate petition is simply a formal request asking the court to establish the validity of the decedent’s will. Along with the petition, an executor should supply a death certificate and an original copy of the will.
In some states, the executor is called the “personal representative” of the estate; for ease of reference, the term executor will be used here.
2. Notice. The executor must notify interested parties (beneficiaries, heirs, and creditors) about the upcoming probate hearing. The type of notification required varies by state.
Regardless of the specifics, though, a notice should also be published in the newspaper of the decedent’s hometown area and give others who might have a stake in the process the opportunity to come forward.
3. Set Probate Hearing. Once the estate is opened to probate and all notice requirements have been met, it’s time to set the probate hearing date through the court.
4. Attend Probate Hearing. The executor must attend the probate hearing to get the decedent’s will declared valid.
5. Handle Objections. At this point, if someone will be contesting a will for any reason, it is up to the executor to defend the will’s provisions and, most likely, his or her very role as the person handling the estate.
6. Settle Estate. Once the probate hearing is over, and the will is declared valid, the executor is responsible for carrying out the following duties:
- Compiling a list of creditors
- Compiling a list of assets and having them appraised
- Otherwise complying with probate court requests
Note that the executor or personal representative will also need to secure an employer identification number (EIN) from the IRS to deal with estate taxes and open a bank account dedicated to estate business.
Next Steps to Get Through Probate
Once all of the above has been taken care of, creditors and any estate taxes should be paid. The executor can then ask for the probate court’s permission to distribute property to heirs according to the will.
Finally, once all debts are handled and property distributed, the executor should notify the court to close the estate and be released from executor duties.
As you can see, the formal probate process involves many steps, which is why it can take several months or even years to complete, especially if any problems or issues arise.
If you serve as an executor or personal representative and have questions regarding your role or actions, remember that an experienced probate attorney can be a helpful ally throughout the process.