Just the word “probate” strikes fear into the hearts of many executors.
This doesn’t have to be the case. The probate court process is simply the legal process by which the court oversees the settlement of an estate after someone dies.
You’ll want to avoid probate court if you can, but many of the steps in the process of probating a will are steps you’ll need to take regardless of whether the will is probated formally in the court system. In probate, you’ll just do so with court supervision.
The probate process does take time, and you’ll be subject to the court’s schedule, so don’t expect a quick resolution to it.
A simple estate plan can be probated in as little as three months. If an estate is complex or the will is challenged, the process can take a year or longer. An estate may be subject to probate whether a will exists or not, depending on how assets are held in the estate.
There are steps the will writer can take to avoid probate, but if this is not the case, the probate process can be managed effectively with the help of an estate attorney or probate lawyers.
Here’s a quick navigation of what’s in this article:
- Probate Definition
- What assets are subject to probate?
- Is a will always followed exactly as written during the probate process?
- The 8 steps to probating a will
Let’s dive in!
Probate Definition
The term probate can be used in several ways; therefore it can have several different, but similar meanings.
To probate a will means to give the deceased’s will to a judge or court for the process of overseeing the final distribution of the estate in a way that complies with the laws of the jurisdiction and the will itself.
The court can be involved in many aspects of the process of closing the estate, from determining if the will is valid and ensuring laws are followed to making sure the assets are properly distributed and closing the estate. In this case, the term probate would be used like the following example – “The executor probated the will of the deceased.”
Probate also can refer to the judge or court that is handling the estate in the previous example, such as, “The executor filed the will with probate.”
Finally, probate can describe the process, from start to finish, of settling a deceased person’s estate, as in, “The probate lawyer advised me probate can take more than 12 months.” In this case, probate would refer to the process of making sure the will is valid, distributing property and assets, paying off any final bills, taxes, and other debts.
The estate can be closed if all has been completed properly and in accordance with the law.
What assets are subject to probate?
When you die, your probate estate is everything that is in your estate that can be distributed by a will. You will also hear the terms “probate property” or “probate assets” to describe those items in your estate you can give in your will. During the probate administration, for example, an heirloom watch can be distributed.
However, a life insurance policy cannot be distributed, so the life insurance policy is considered a “non-probate asset.” This is because the person who creates a life insurance policy names in the policy who is to receive the money upon death.
During the probate process, you may find on a deed, for example, that a piece of property had a joint ownership interest, meaning it was not owned solely by the will-maker. If that is the case, the property may not be a probate asset and is not subject to probate administration. In this case, the property would pass automatically to the other owners on the deed.
Is a will always followed exactly as written during the probate process?
The role of the probate court varies depending on whether the will is contested or uncontested. If a will is contested, that means someone has reason to believe the will is not valid and should not be followed.
Reasons to contest a will include believing the will-writer may have been improperly influenced when writing the will, giving items to beneficiaries he would not have without the improper influence. Other reasons to contest a will are that the will-writer did not have the mental capacity to write a will at the time it was written, or the will is not written according to the necessary formulas in the state in which it was written.
A will can be contested in its entirety or a particular section of the will can be contested. Whether the entire will or just a portion is contested, the probate judge considers evidence presented and makes a determination of the validity of the will or will section. A will contest proceeds in a very similar way as any other lawsuit.
Generally, though, most wills are not contested and the probate court does not require evidence on whether the will should be followed. Uncontested wills generally complete the probate process more quickly than contested wills.
8 Steps to Probate a Will
Below are the 8 primary steps in the probate process:
1. Determine if Probate Will Be Required.
Here’s the simplest test: are there titled assets in the estate that will need to change hands?
If the answer is yes, the will is likely to require probate.
Examples of assets for which a title would need to change if they were owned individually would include real estate, a boat, autos, or a privately held business.
If you plan to sell those assets during the estate settlement process or pass them to a beneficiary, you’ll need to go through probate.
If assets in the estate are held in trusts, in accounts with designated beneficiaries, or are jointly owned (with the other owner still alive), probate may not be required.
If the jointly owned asset is real estate, probate is the only way to remove the deceased party from the title. In some states, small estates (with values of less than $50,000 or $100,000 may not require probate regardless of titles changing hands.
2. File Documents with Probate Court.
Documents like the Petition for Probate of Will and state-specific forms related to the appointment of the executor will be filed with the clerk of courts in the county of residence of the deceased person. This formally begins the process.
The will, which will determine who will receive assets, is filed at this time. The court will determine the validity of the will and rule on that. In some cases, the will may state (or state law or probate court will require) that an executor get a probate bond. A probate bond is purchased by the executor and typically reimbursed by the estate. The bond guarantees that you will comply with federal and state laws and complete your duties ethically. If you do not fulfill your duties as an executor, someone can make a claim against the bond.
The court will then issue an order admitting the will to probate. This step legally confirms the will as valid and as the guiding document in the process.
3. Swear in the Executor.
A will typically designates an executor, or personal representative, to settle the estate. If the individual dies without a will, the courts will select a personal representative.
Upon taking an oath and being sworn in, the executor will receive Letters of Testamentary. This document informs all third parties, like banks and investment firms, that you have the legal authority to act on behalf of the estate.
4. File Public Notice.
In most states, even in the digital age, the estate is required to publish a death notice in the local newspaper and send news releases, notifying creditors, heirs, and others of the death.
This process formally makes anyone who believes they have a claim against the estate aware of the death and starts the clock for when they are able to make a claim that the estate owes them money.
5. Value the Estate.
One of the more challenging duties of the executor is to determine the value of the estate.
For financial assets (like stocks and bank accounts), this is straightforward, but you must determine the date of death valuation for each asset as there are significant tax issues related to this.
For real estate, jewelry and other valuable items, determining value can be more challenging and require an appraisal from a licensed professional.
Valuing the estate accurately is a critical part of the role. This process will also help determine if there are enough assets in the estate to cover its debts and ongoing expenses (like mortgage payments on a home).
Here are helpful spreadsheets where you can inventory your financial and non-financial assets to help you get organized.
Safeguarding assets and making sure they are not prematurely distributed to (or taken by) beneficiaries is a vital part of the role. If you do not protect the assets of the estate, you may end up in a situation where there are not enough assets to cover debts and expenses of the estate. You also create legal liability for yourself as executor.
6. Pay Legitimate Bills and Taxes.
As executor, you’ll pay the bills and taxes for the estate.
Make sure the expenses are valid before paying them, even if that requires a phone call or a bit of detective work (if you’re unsure if they’re real.) If you deny a claim, that creditor has the right to petition the court for payment.
As executor, you’ll also be responsible for payment of federal and state estate taxes and income taxes by the estate. Estates with less than $11.2 million in assets are not subject to federal estate taxes based on the new US tax law, but state estate tax thresholds are much lower in most states.
Additionally, one or two years of federal, state, and local income taxes may be owed, depending on if the deceased passed before filing their taxes for the previous year.
While laws can differ by state and county court, the costs to settle the estate are the first to be paid by the estate. These include professional fees such as hiring a law firm, executor fees, and the cost of public filing fees. Just be sure to follow the probate court local rules (if you’re unsure of something, ask your county probate court).
Next are funeral expenses and taxes, with all other claims following those. If proper legal notices are filed, claims made after state-mandated deadlines are not typically valid.
7. Distribute Assets.
Only after all the obligations of the estate have been made, beneficiaries will receive their share of the assets.
The court and probate court judge will supervise this process, as you will petition the court for approval prior to making these distributions. The court’s role is to ensure that the executor is acting fairly and that all obligations of the estate have been satisfied.
This process is ultimately of benefit to the executor, since you will minimize your legal risk by acting under the supervision of the court.
8. Close the Estate.
The court will formally close the estate, completing the probate process and your role as executor.
The probate process, while intimidating to many, is a manageable process and will help provide some structure to the estate settlement process. With professional help and a bit of patience, probate court should help ensure you settle the estate effectively and with managed legal liability.
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