A will dictates how a person's property will be distributed after they die but, before assets can be handed over to their beneficiaries, the will has to go through probate.
Probate is the legal process of having a deceased person's will formally approved by a court and then enacted to carry out their wishes. Each state has its own probate courts that handle this process.
There are five ways to probate a will, but all five are not available in every state, so be sure to determine what your state laws require.
1. Formal Probate
The formal probate process is used when someone dies with a will and an estate with a significant value. The executor, meaning the person named in the will as the person responsible for making sure the will is probated and the assets distributed, must start the process by filing a petition with the probate court. If the court deems the will valid, it will issue an order for the deceased's assets to be distributed according to the instructions in the will.
The next step to probate a will is for the executor to provide notice to all the people who have an interest in the proceeding. This includes:
- Beneficiaries. People designated in the will to inherit the deceased's assets
- Creditors. Anyone to whom the deceased's estate owes money
- Heirs. People who would inherit under state law if there were no will
- A newspaper. A published notice in a local newspaper selected by the court
Once everyone has been notified, a hearing is held to determine if the will is legally valid and if anyone is seeking to challenge it. A will challenge basically involves someone saying the will was not created and signed in accordance with state law.
Objections could be that the testator, or person writing the will, was not of sound mind, that there was fraud involved in getting them to sign, and other similar situations.
Once the court approves the will, the executor must create and submit a list of all the assets owned by the deceased and their values and a list of all the creditors with claims against the estate. If the court approves, the executor then settles the estate by paying all the creditors first and distributing what is left to the beneficiaries.
2. Informal Probate
An informal probate proceeding is a process that fast tracks approval of the will and distribution of the assets. This process is only available in 18 states, so check to see if your state offers it. Each state has its own requirements for qualifying for this process, but it's most common when all heirs and beneficiaries agree that the will is valid and no one will challenge it.
Any size estate can use this process and a court appearance is not needed. The will is filed along with some signed statements by the heirs and beneficiaries. It's then approved and property can be distributed to the beneficiaries.
3. Claiming Property Via Affidavit
When an estate's value falls under a limit set by the state, it's possible to distribute the assets to the beneficiaries using affidavits—a legal form that is sworn to in front of a notary.
The probate court is not involved at all in this process. Instead, the beneficiary completes an affidavit stating that they are legally entitled to the property. The affidavit is then sent to the institution holding the asset, such as a bank or brokerage house, and asks it to transfer the asset to the beneficiary. This method is not valid for real estate.
4. Summary Estate Administration
This type of process is available when the estate's value is less than a specific limit set by the state and it's available when someone dies with or without a will. The summary process goes through probate court, but it's shorter and much faster.
If the deceased owned real property, this process is generally not available. The process is similar to that of formal probate, but there are fewer forms, a brief court appearance, and a faster timeline.
5. Set Aside
A set aside is similar to summary estate administration and is available in a few states, such as California and Nevada. The estate must be under a certain amount to qualify. The case does go through the probate court but there are fewer forms and the case is resolved quickly. In general, this is available only if the beneficiary is the surviving spouse or minor children.
Probating a will allows the beneficiaries to inherit the assets due to them. The five different probate options offer various pathways to carry out the wishes included in the deceased's will.