Probate is a court-supervised legal way to settle a deceased person's estate. It involves paying their debts and outstanding taxes, appraising and distributing property to beneficiaries, and closing the estate. Distribution follows the direction of the decedent or intestacy laws.
An average American may find this process overwhelming because it happens when the family is still grieving. Taking inventory of a loved one's estate, court filings, and contested wills can be intense and time-consuming. Fortunately, unless there are complications, many states have simplified probate laws to shorten the time and effort required to complete them.
Beneficiaries and executors will find this guide helpful in understanding the process's purpose and letting them know what to expect. It also outlines the necessary steps, so everyone knows how close they are to finalizing the process.
What Is a Probate Process
Passing on a deceased person's property to another may require a legal process. Family members or friends do not simply pick a property of choice and assume ownership (unless it is a transfer on death—TOD property). Instead, the court oversees the distribution by following the deceased person's posthumous wishes or applying intestacy laws. At the end of the process, all beneficiaries become legal owners of any property they receive.
The probate process allows the deceased's wishes to prevail, while allowing all parties involved to contest the will or seek clarifications when there is a dispute.
Put simply, probate is the process of finalizing the dead person's estate and passing the remainder to their inheritors. It is court-supervised and usually involves validating the last will and testament, which needs to have been finalized before the person dies.
Prepare a Last Will and Testament Now
How to Start a Probate Process
The executor should initiate the probate process as soon as possible following the decedent's death. If there is no pre-assigned executor, an heir usually starts the process.
Quote block: Some states require that the probate process not start for at least 30 days after death. Be sure to check with an attorney or court clerk for state-specific deadlines.
You kick off the process with a petition to the probate court. Below is a step-by-step guide to that process.
A Step-by-Step Overview of the Probate Process
The court is mandated to supervise and ensure that the process happens in accordance with the state's laws.
Here is an overview of what you should expect.
Step 1: Petition to a probate court
The first step is filing the death certificate at the probate court. This action notifies the court of the death and the need to begin succession. You should also file the will if one is available. Even if you are the executor named in the will or not, this petition also requests that the court officially appoint you as the executor.
Your probate court may likely provide a fill-in-the-blanks form to provide details about the deceased, the date of death, surviving spouse or children, and beneficiaries.
Depending on the jurisdiction, you may need to file the petition in the county where the decedent lived at the time of death, where they signed the will, owned property, kept bank accounts, etc. Find out from the court clerk if your petition is at the correct court and if you have filled it out correctly.
Step 2: Identify the assets to probate
Not all of the deceased assets are subject to the probate process. Some automatically go to the beneficiaries or co-owners upon death. Such exempted assets include bank accounts and insurance policies with a designated beneficiary.
Some people may want some of their assets to bypass probate. They do so to shorten the time beneficiaries wait to receive their inheritance. So, many resort to creating trusts, offering gifts to family and friends, or co-owning property in ways that allow automatic transfer to surviving co-owners as options for estate planning.
The executor must, therefore, ask themselves which assets are subject to probate. Taking inventory of such property involves listing all assets and their values.
Probate assets include the following:
- Personal property/belongings
- Individually owned assets
- Tenancy in common property
- When no beneficiaries are named in non-probate assets.
Be thorough when appraising the decedent's probate assets to avoid a back-and-forth with the court.
Step 3: Identify and pay creditors or debts
The deceased do not take their debts with them to the grave. Their estate must cover such obligations before any asset is distributed to the beneficiaries unless exemptions exist. For example, someone who cosigns a loan may inherit the debt when one party dies.
An executor or a court-assigned administrator uses the decedent's money to pay their outstanding debts. They may sell one or more assets to raise the necessary amount if no money is available.
Sometimes, identifying debts is as simple as reading the will. Other times, it may involve reviewing the deceased's financial records to identify pending bills and unpaid debts.
Step 4: File the deceased's final taxes
This step involves preparing and filing the decedent's taxes as they would if they were alive. You will need to report all income up to the date they died.
- File a current tax year return.
- File tax returns for prior years if they had a non-filing status.
- Pay tax balances they owed.
- Claim tax refunds
You may find the necessary filing forms on the IRS website.
Step 5: Distribute the assets and close the estate
After paying all debts and taxes, it is time to distribute the remaining probate assets to the beneficiaries. The will typically has a list of beneficiaries and which assets they get. Without a will, the court decides how to distribute based on the state's intestacy laws.
The executor closes the estate by either filing the Final Settlement or a Waiver of the Final Settlement.
How Long Does the Probate Process Last?
According to the American Bar Association, a probate process takes six months on average. That said, every procedure is unique. Some take years to resolve.
Different states have differing rules for how long a probate process should last. In California, for example, the law stipulates up to a year for an executor or administrator to complete the process. However, depending on the size of the estate and whether the will is contested, among other factors, the process can last longer than a year.
Make sure you have your estate in order with our estate planning checklist to ensure that someday, your probate process will run as smoothly as possible.
Helpful Resources:
Internal Revenue Service - File the Final Income Tax Returns of a Deceased Person
Probate is a court-supervised legal way to settle a deceased person's estate. It involves paying their debts and outstanding taxes, appraising and distributing property to beneficiaries, and closing the estate. Distribution follows the direction of the decedent or intestacy laws.
An average American may find this process overwhelming because it happens when the family is still grieving. Taking inventory of a loved one's estate, court filings, and contested wills can be intense and time-consuming. Fortunately, unless there are complications, many states have simplified probate laws to shorten the time and effort required to complete them.
Beneficiaries and executors will find this guide helpful in understanding the process's purpose and letting them know what to expect. It also outlines the necessary steps, so everyone knows how close they are to finalizing the process.
What Is a Probate Process
Passing on a deceased person's property to another may require a legal process. Family members or friends do not simply pick a property of choice and assume ownership (unless it is a transfer on death—TOD property). Instead, the court oversees the distribution by following the deceased person's posthumous wishes or applying intestacy laws. At the end of the process, all beneficiaries become legal owners of any property they receive.
The probate process allows the deceased's wishes to prevail, while allowing all parties involved to contest the will or seek clarifications when there is a dispute.
Put simply, probate is the process of finalizing the dead person's estate and passing the remainder to their inheritors. It is court-supervised and usually involves validating the last will and testament, which needs to have been finalized before the person dies.
Prepare a Last Will and Testament Now
How to Start a Probate Process
The executor should initiate the probate process as soon as possible following the decedent's death. If there is no pre-assigned executor, an heir usually starts the process.
Quote block: Some states require that the probate process not start for at least 30 days after death. Be sure to check with an attorney or court clerk for state-specific deadlines.
You kick off the process with a petition to the probate court. Below is a step-by-step guide to that process.
A Step-by-Step Overview of the Probate Process
The court is mandated to supervise and ensure that the process happens in accordance with the state's laws.
Here is an overview of what you should expect.
Step 1: Petition to a probate court
The first step is filing the death certificate at the probate court. This action notifies the court of the death and the need to begin succession. You should also file the will if one is available. Even if you are the executor named in the will or not, this petition also requests that the court officially appoint you as the executor.
Your probate court may likely provide a fill-in-the-blanks form to provide details about the deceased, the date of death, surviving spouse or children, and beneficiaries.
Depending on the jurisdiction, you may need to file the petition in the county where the decedent lived at the time of death, where they signed the will, owned property, kept bank accounts, etc. Find out from the court clerk if your petition is at the correct court and if you have filled it out correctly.
Step 2: Identify the assets to probate
Not all of the deceased assets are subject to the probate process. Some automatically go to the beneficiaries or co-owners upon death. Such exempted assets include bank accounts and insurance policies with a designated beneficiary.
Some people may want some of their assets to bypass probate. They do so to shorten the time beneficiaries wait to receive their inheritance. So, many resort to creating trusts, offering gifts to family and friends, or co-owning property in ways that allow automatic transfer to surviving co-owners as options for estate planning.
The executor must, therefore, ask themselves which assets are subject to probate. Taking inventory of such property involves listing all assets and their values.
Probate assets include the following:
- Personal property/belongings
- Individually owned assets
- Tenancy in common property
- When no beneficiaries are named in non-probate assets.
Be thorough when appraising the decedent's probate assets to avoid a back-and-forth with the court.
Step 3: Identify and pay creditors or debts
The deceased do not take their debts with them to the grave. Their estate must cover such obligations before any asset is distributed to the beneficiaries unless exemptions exist. For example, someone who cosigns a loan may inherit the debt when one party dies.
An executor or a court-assigned administrator uses the decedent's money to pay their outstanding debts. They may sell one or more assets to raise the necessary amount if no money is available.
Sometimes, identifying debts is as simple as reading the will. Other times, it may involve reviewing the deceased's financial records to identify pending bills and unpaid debts.
Step 4: File the deceased's final taxes
This step involves preparing and filing the decedent's taxes as they would if they were alive. You will need to report all income up to the date they died.
- File a current tax year return.
- File tax returns for prior years if they had a non-filing status.
- Pay tax balances they owed.
- Claim tax refunds
You may find the necessary filing forms on the IRS website.
Step 5: Distribute the assets and close the estate
After paying all debts and taxes, it is time to distribute the remaining probate assets to the beneficiaries. The will typically has a list of beneficiaries and which assets they get. Without a will, the court decides how to distribute based on the state's intestacy laws.
The executor closes the estate by either filing the Final Settlement or a Waiver of the Final Settlement.
How Long Does the Probate Process Last?
According to the American Bar Association, a probate process takes six months on average. That said, every procedure is unique. Some take years to resolve.
Different states have differing rules for how long a probate process should last. In California, for example, the law stipulates up to a year for an executor or administrator to complete the process. However, depending on the size of the estate and whether the will is contested, among other factors, the process can last longer than a year.
Make sure you have your estate in order with our estate planning checklist to ensure that someday, your probate process will run as smoothly as possible.
Helpful Resources:
Internal Revenue Service - File the Final Income Tax Returns of a Deceased Person
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