The Probate Process: Four Simple Steps by Brette Sember, J.D.

The Probate Process: Four Simple Steps

Knowing what probate actually involves will help ease your fears about the process, one that isn't always as complex as you might think.

by Brette Sember, J.D.
updated December 23, 2020 · 3 min read

Probate is the legal process a will must go through to establish its validity before anything can be distributed to the beneficiaries. The testator, meaning the person writing the will, names an executor in the will whose job it is to move the will through the probate process. The people who inherit from the will are the beneficiaries.

The steps involved in the probate process must be carried out carefully and in a certain order.

elderly woman looking at laptop in grey shirt

Step 1: Filing

Once a will has been located, the first step in the probate process is filing a petition with the probate court requesting that the will be probated. The probate petition asks that the executor formally be appointed to act on behalf of the estate.

All heirs and beneficiaries must receive notice that the petition has been filed. This allows them to object to the petition and challenge the will. In some states, a notice of the petition must also be published in a newspaper of record so that potential creditors can receive notice.

If there is no will, a petition is filed seeking administration of the estate, and a notice of administration must be given to all legal heirs. The person filing the petition requests that the court appoint them as the estate's personal representative, a role similar to that of executor.

Step 2: Identifying Assets and Debts

Once the court has appointed the executor or personal representative, they must identify and disclose all of the estate's assets and provide a valuation. Assets include real estate, vehicles, investments, bank accounts, cash, personal property, intellectual property, and pets.

The executor takes legal control of these assets. On the other hand, assets owned by a trust, such as a living trust, are not probate assets and are not distributed by the probate court.

The executor or personal representative must inform all known creditors of the estate proceeding. Creditors have a specific time frame in which they must file their claims against the estate. All known debts must be identified and disclosed to the court.

Step 3: Payment of Debts

The executor or personal representative must pay all of the estate's debts from the estate's assets. In addition to pre-existing debts such as loans, mortgages, utility bills, and credit cards, a final tax return must be filed for the estate, and any taxes due must be paid. Funeral expenses must also be paid.

If there is not enough cash on hand to pay all creditors, the executor or personal representative can sell the estate's assets to obtain the funds needed to pay off the debts.

Step 4: Distribution of Assets

Once all of the creditors have been paid, the executor or personal representative distributes the remaining assets according to the testator's wishes if there is a will, or according to state intestacy statutes if there is no will. This may require formal ownership transfers via deeds or titles for things like real property and vehicles.

If the will requires establishing a trust, the executor must set one up according to the instructions included in the will. A final accounting of the estate must be provided to the court, detailing all of the assets and debts and how the property was distributed.

The entire probate process can take a few months to a year or longer, depending on the estate's complexity and the court's calendar. Successfully wrapping up an estate through probate requires attention to detail and a methodical approach to the steps involved.

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Brette Sember, J.D.

About the Author

Brette Sember, J.D.

Brette Sember, J.D. practiced law in New York, including divorce, mediation, family law, adoption, probate and estates, … Read more