An Overview of the Probate Process

When one passes away, family members and/or legal representatives take on the responsibility of settling the various matters related to the estate. From handling the outstanding debts to overseeing property that is not explicitly transferred to beneficiaries, this is known as the probate process.

The start of the probate process depends on whether or not a will is involved. In situations where a will is present, the process will start with the executor presenting the will for probate. Situations where no will is included means that an individual will need to petition the court to appoint an administrator of the estate. In most cases, this administrator is the spouse or child of the decedent. Once the executor or administrator is named or appointed, he or she is now the legal representative of the estate.

The Probate Process in Four Steps

1. File a Petition and Give Notice

As discussed above, the probate process begins with the filing of the petition with the probate court. If there is a will, it will now be admitted to probate and the executor will be appointed. If there is not a will, then an administrator will be appointed. In most cases, all of the decedent’s heirs and beneficiaries must be made aware of the notice of the court hearing that involves this petition. This will be their opportunity to object to the petition.

At this same time, information about this hearing is typically published in a newspaper. By publicly publishing the hearing, unknown creditors are made aware of the situation from the onset of the probate process.

2. Work with Creditors and Take Inventory

Once appointed, the executor or administrator must provide written notice to all creditors of the estate based upon state law. At this time, any creditor who wishes to make a claim has a limited window to do so.

Concurrently to reviewing the debts, the executor will conduct an inventory of all of decedent’s probate property. This inventory includes compiling any and all real property, stocks, bonds, and business interest. There are some instances where a court appointed appraiser will step in and value the assets. At other times, an independent appraiser can be hired by the estate to appraise non-cash assets.

3. Make Payments from the Estate

Once the creditors and inventory tasks are completed, it falls on the executor to determine which are legitimate. These outstanding bills – including estate and funeral expenses, debts, and taxes – must be paid along with any other final bills from the estate. There will be situations that allow the executor to sell estate assets in order to make payments on the outstanding obligations.

4. Property is Transferred

Once all approved claims and debts are paid, and the creditors’ grace period to file claims against the estate has expired, the estate executor or administrator will petition the court for authority to transfer the remaining assets as outlined in the decedent’s will. If there is no will, then the petition will align with the state intestate succession laws. In situations where the will specifies the creation of a trust for a minor, spouse, or incapacitated family member, the money is then transferred to the trustee.

The petition may also include an accounting of how the assets were used during the probate process. However, the beneficiaries of the estate can waive this requirement.

Once the executor or administrator received the petition’s approval, new deeds for property, the transfer of stock, and liquidation or transfer of assets can be created and carried out.