If you’re involved in settling an estate, one of the first questions you ask is probably, “What is probate?” Probate is the legal process that takes place after someone dies that determines how the deceased’s assets will be distributed.
In most circumstances, the executor named in the will assumes the role of handling probate. If there's no will, the state probate court will decide the rules of inheritance.
Keep in mind that the probate process and timeline will vary depending on the state but, in general, probate law requires these steps.
Step 1: File a petition to begin probate.
You’ll have to file a request in the county where the deceased person lived at the time of their death. The paperwork will ask for you to be officially acknowledged as the legal executor representing the estate. In addition to the petition, you’ll need to file a valid will, if one exists, and the death certificate. Then the court will schedule a hearing to approve the executor (or hear objections from other parties). If you’re approved as executor, the court will officially open the probate case and you will now be able to act on behalf of the deceased’s estate.
Step 2: Give notice.
You’ll need to mail a notice that the estate is in probate to all creditors, beneficiaries and heirs (as required by the court). Some states may also require you to publish a notice in the newspaper.
Step 3: Inventory assets.
Collect, inventory and appraise all assets that are subject to probate and present them to the court, such as:
- Bank accounts.
- Retirement accounts.
- Stocks and bonds.
- Real estate.
- Personal effects, such as valuable art collections.
Step 4: Handle bills and debts.
Collect money owed to the estate, such as outstanding paychecks and rents. Also review any outstanding bills and debts and decide whether/how they must be paid. This may require some sleuthing on your part. You might need to go through checkbooks, emails and/or bank account to gather information. You'll need to ensure the estate's assets can cover all debts before paying them. If not, the state will prioritize creditor claims.
You'll also need to pay all applicable taxes, as well as file a final income tax return on the estate. It's usually a good idea to set up an estate account for paying the estate's final bills and expenses.
Step 5: Distribute remaining assets.
With all claims, debts and expenses paid, you'll give the remaining property to the rightful heirs and/or as the will directs.
Step 6: Close the estate.
Once everything has been distributed, you’ll submit receipts and records of everything to the court and then ask for the estate to be closed – and to be released from the role of executor.
Do you need a probate attorney?
If you’d like some guidance as you go through the process, a probate lawyer can help. A probate lawyer is a state-licensed attorney with experiencing helping executors settle an estate.