Takeaways for Estate Administrators
- Probate is a process supervised by courts that settles a deceased person's estate.
- You may need probate to validate the will, pay debts, and transfer property.
- The executor of the will must identify assets and file final tax returns.
- Some assets can pass directly to beneficiaries without going through probate.
- Remaining property is distributed under the will or state intestacy laws.
- Probate often takes several months and may take longer if disputes arise.
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 rece ive.
The probate process allows the deceased's wishes to prevail. It also allows 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
Why Is Probate Necessary?
Probate is not always required, but unless steps have been taken to avoid it, it's very likely that it will be necessary to undertake this process. State probate laws can also play a big role in deciding whether probate is needed.
Therefore, it's important to check your state's specific laws when deciding whether to apply for probate.
There are also certain situations in which probate is always required, the most common of are:
- If there is no will (also known as dying intestate)
- If there are problems with the will
- If there are no beneficiaries
- If it is specifically required by the estate
Step-by-Step Probate Process Checklist
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 the 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.
- What to submit: File the death certificate, the original will if one is available, and the court's probate petition form. You may need to provide details about the deceased, the date of death, surviving family members, and beneficiaries.
- The goal: Ask the court to officially appoint the executor named in the will or another eligible person to administer the estate.
Depending on the jurisdiction, you may need to file the petition in the county where the decedent lived at the time of death. Find out from the court clerk if your petition is at the correct court and if you have filled it out correctly.
Step 2: Create and inventory of the probate assets and their value
Not all of the deceased assets are subject to the probate process. Some automatically go to the beneficiaries or co-owners upon death.
The table below gives you a general idea of probate and non-probate assets:
| Probate Assets Generally Go Through Probate | Non-Probate Assets Generally Pass Outside Probate |
|---|---|
| Property owned solely in the deceased person's name | Property held in joint ownership with right of survivorship |
| Personal belongings, vehicles, and other individually owned property | Bank accounts with a payable-on-death beneficiary |
| The deceased person's share of property held as tenants in common | Life insurance and retirement accounts with a named beneficiary |
| Accounts or policies with no valid beneficiary, or with the estate named as beneficiary | Property held in a living trust |
| Real estate owned individually without a transfer-on-death provision | Property registered with a valid transfer-on-death designation |
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
- 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.
Be thorough when appraising the decedent's probate assets to avoid a back-and-forth with the court.
Step 3: Notify creditors and pay outstanding 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.
The estate must:
- Identifying debts: Sometimes, this is as simple as reading the will. Other times, it may involve reviewing the deceased's financial records to identify unpaid bills and debts.
- Settle bills: The executor uses money from the estate to pay valid debts and expenses. If the estate does not have enough cash, they may need to sell assets.
Step 4: File final tax returns
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 inheritance 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 Actually Take?
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.
A straightforward probate case may follow this general timeline:
- Months 1–2: File the petition and identify estate assets
- Months 3–6: Notify creditors and review valid claims
- Months 7–12: File taxes, distribute property, and close the estate
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.
Disadvantages of Probate and How to Avoid It
Probate can be a lengthy process with a high amount of time investment for all parties involved. Because of this, court costs and fees can also quickly rise. While it depends on the state, it was found that probate fees can consume between 4% and 7% of an estate [3].
Taking into account the expenditures that arise from complicated probate processes, as well as the potential conflicts that can occur between the parties, it's recommended to try to avoid this process.
Use the following methods when estate planning to minimize the chance of probate and to ensure a will is administered without legal challenges:
- Implement joint ownership of assets
- Minimize estate assets
- Set up a revocable living trust
- Name beneficiaries on life insurance policies and retirement accounts
- Use beneficiary deeds or transfer-on-death deeds and payable-on-death accounts if allowed within your state
Helpful Resources:
Internal Revenue Service - File the Final Income Tax Returns of a Deceased Person
California Courts - Wills, Estates, and Probate
American Bar Association - Probate Process
FAQs
-
Can an executor be held personally liable for the deceased's debts?
If you're an executor, you're usually not personally responsible for the deceased person's debts simply because you administer the estate.
You normally pay valid debt from estate assets. However, you may become personally liable if you:
- Mishandle funds
- Distribute property before required debts or taxes are paid
- Were already liable as a co-signer or joint borrower.
The laws in your state determine the exact consequences.
-
Is it possible to complete the probate process without a lawyer?
Yes, you may be able to complete probate without a lawyer. This is especially the case when the estate is:
- Simple
- Uncontested
- Supported by clear court forms
Some courts expressly allow personal representatives to proceed without counsel. However, probate rules vary by state and county.
You should consider seeking legal help if the estate has:
- Disputes
- Unclear ownership
- Tax issues
- Significant debt
- Complex property
-
What is the best way to make the probate process easier for my own family?
The best way to make probate easier for your family is to create a valid, up-to-date estate plan and make it easy to locate. You can do this by following these steps:
- Make an inventory of your assets and debts
- Name an executor
- Review beneficiary designations regularly
Depending on state law and your circumstances, tools such as living trusts, payable-on-death accounts, or transfer-on-death deeds may allow some property to pass outside probate.
Takeaways for Estate Administrators
- Probate is a process supervised by courts that settles a deceased person's estate.
- You may need probate to validate the will, pay debts, and transfer property.
- The executor of the will must identify assets and file final tax returns.
- Some assets can pass directly to beneficiaries without going through probate.
- Remaining property is distributed under the will or state intestacy laws.
- Probate often takes several months and may take longer if disputes arise.
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 rece ive.
The probate process allows the deceased's wishes to prevail. It also allows 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
Why Is Probate Necessary?
Probate is not always required, but unless steps have been taken to avoid it, it's very likely that it will be necessary to undertake this process. State probate laws can also play a big role in deciding whether probate is needed.
Therefore, it's important to check your state's specific laws when deciding whether to apply for probate.
There are also certain situations in which probate is always required, the most common of are:
- If there is no will (also known as dying intestate)
- If there are problems with the will
- If there are no beneficiaries
- If it is specifically required by the estate
Step-by-Step Probate Process Checklist
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 the 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.
- What to submit: File the death certificate, the original will if one is available, and the court's probate petition form. You may need to provide details about the deceased, the date of death, surviving family members, and beneficiaries.
- The goal: Ask the court to officially appoint the executor named in the will or another eligible person to administer the estate.
Depending on the jurisdiction, you may need to file the petition in the county where the decedent lived at the time of death. Find out from the court clerk if your petition is at the correct court and if you have filled it out correctly.
Step 2: Create and inventory of the probate assets and their value
Not all of the deceased assets are subject to the probate process. Some automatically go to the beneficiaries or co-owners upon death.
The table below gives you a general idea of probate and non-probate assets:
| Probate Assets Generally Go Through Probate | Non-Probate Assets Generally Pass Outside Probate |
|---|---|
| Property owned solely in the deceased person's name | Property held in joint ownership with right of survivorship |
| Personal belongings, vehicles, and other individually owned property | Bank accounts with a payable-on-death beneficiary |
| The deceased person's share of property held as tenants in common | Life insurance and retirement accounts with a named beneficiary |
| Accounts or policies with no valid beneficiary, or with the estate named as beneficiary | Property held in a living trust |
| Real estate owned individually without a transfer-on-death provision | Property registered with a valid transfer-on-death designation |
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
- 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.
Be thorough when appraising the decedent's probate assets to avoid a back-and-forth with the court.
Step 3: Notify creditors and pay outstanding 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.
The estate must:
- Identifying debts: Sometimes, this is as simple as reading the will. Other times, it may involve reviewing the deceased's financial records to identify unpaid bills and debts.
- Settle bills: The executor uses money from the estate to pay valid debts and expenses. If the estate does not have enough cash, they may need to sell assets.
Step 4: File final tax returns
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 inheritance 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 Actually Take?
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.
A straightforward probate case may follow this general timeline:
- Months 1–2: File the petition and identify estate assets
- Months 3–6: Notify creditors and review valid claims
- Months 7–12: File taxes, distribute property, and close the estate
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.
Disadvantages of Probate and How to Avoid It
Probate can be a lengthy process with a high amount of time investment for all parties involved. Because of this, court costs and fees can also quickly rise. While it depends on the state, it was found that probate fees can consume between 4% and 7% of an estate [3].
Taking into account the expenditures that arise from complicated probate processes, as well as the potential conflicts that can occur between the parties, it's recommended to try to avoid this process.
Use the following methods when estate planning to minimize the chance of probate and to ensure a will is administered without legal challenges:
- Implement joint ownership of assets
- Minimize estate assets
- Set up a revocable living trust
- Name beneficiaries on life insurance policies and retirement accounts
- Use beneficiary deeds or transfer-on-death deeds and payable-on-death accounts if allowed within your state
Helpful Resources:
Internal Revenue Service - File the Final Income Tax Returns of a Deceased Person
California Courts - Wills, Estates, and Probate
American Bar Association - Probate Process
FAQs
-
Can an executor be held personally liable for the deceased's debts?
If you're an executor, you're usually not personally responsible for the deceased person's debts simply because you administer the estate.
You normally pay valid debt from estate assets. However, you may become personally liable if you:
- Mishandle funds
- Distribute property before required debts or taxes are paid
- Were already liable as a co-signer or joint borrower.
The laws in your state determine the exact consequences.
-
Is it possible to complete the probate process without a lawyer?
Yes, you may be able to complete probate without a lawyer. This is especially the case when the estate is:
- Simple
- Uncontested
- Supported by clear court forms
Some courts expressly allow personal representatives to proceed without counsel. However, probate rules vary by state and county.
You should consider seeking legal help if the estate has:
- Disputes
- Unclear ownership
- Tax issues
- Significant debt
- Complex property
-
What is the best way to make the probate process easier for my own family?
The best way to make probate easier for your family is to create a valid, up-to-date estate plan and make it easy to locate. You can do this by following these steps:
- Make an inventory of your assets and debts
- Name an executor
- Review beneficiary designations regularly
Depending on state law and your circumstances, tools such as living trusts, payable-on-death accounts, or transfer-on-death deeds may allow some property to pass outside probate.
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