Probate Step by Step

There are many variations of the probate process. Every state has its own procedures for both formal and less than formal probate administration. In every case, probate, if it is necessary, commences in the state and county where the decedent last lived.

If there is any probate property that was owned by the decedent at the time of death in a state other than where he or she resided, then ancillary probate procedures must be initiated in the foreign state, after the original process commences in the domiciliary state.

Here is a general step-by-step overview of the probate process:

After a person dies, the individual named in a will to handle the decedent's estate, or a close relative or friend of the decedent if no one is named, must file appropriate papers, including a death certificate and will, if there is one, in the local probate court.

Generally, but not always, that same person will apply to the court to be officially named as the estate's executor. This person must first prove the validity of the will – that it has not been forged, nor executed in a way contrary to prevailing law, nor signed by the testator while mentally incompetent or under duress, nor revoked or supplanted by any other document. (If there is no will, the person appointed by a probate judge to administer the estate is called an administrator.)

In some cases when no formal probate proceeding is necessary, the court may not appoint an estate executor or administrator. This can be either because the decedent had meager assets or only had certain assets (such as property that can be transferred outside of a will through joint tenancy or a living trust that is not subject to probate). Instead, a close friend or relative serving as an informal representative may agree to pay any outstanding debts, taxes and costs from the estate's proceeds, while distributing any remaining property to its correct recipients.

Once an executor is appointed, he or she must present the court with a list of the decedent's property, debts, and who else is likely to be an inheritor. Potential beneficiaries and creditors alike must then be officially notified of the person's death, usually via a notice in a local newspaper, or in some cases, directly. In some jurisdictions, it is necessary to obtain the services of a probate attorney.

All during the probate process, which can take from several months to a year or more, depending upon the size and complexity of the estate, the executor is accountable for managing the decedent's assets and property. The executor has a fiduciary responsibility to the estate which means that he or she must always act in its best financial interests. Thus, the executor has broad leeway to sell assets, negotiate with creditors, etc., and must keep careful records of all transactions. He or she must also report to the probate court as necessary, as well as to the estate's beneficiaries.

The probate judge determines that the affidavit listing the property of the decedent and the proposed inheritors is proper; that all necessary people have been notified; that all debts, taxes, court costs and legal fees are paid, and that any claims against the estate have been settled.

The judge signs an order allowing the decedent's property to be distributed to the estate's beneficiaries as outlined in the will. If the decedent died intestate, the judge will direct the property to be distributed as specified by the state's intestate laws.