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How Does The Probate Process Work

How Does The Probate Process WorkA Probate Attorney would tell you, probate is the court-supervised process of authenticating a last will and testament if the deceased made one. It includes locating and determining the value of the decedent’s assets, paying his final bills and taxes, and, finally, distributing the remainder of the estate to his rightful beneficiaries.

When Is The Probate Process Required?

Each state has specific laws in place to determine what’s required there to probate an estate. These laws are included in the estate’s “probate codes,” as well as requirements for “intestate succession” when a decedent dies without a will.


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Probate is still required to pay the decedent’s final bills and distribute his estate when he dies without a will. Although the laws governing probate can vary from state to state, the steps involved are generally very similar regardless of whether a will exists.

Authenticating the Last Will and Testament


Most states have laws in place that require that anyone who has the deceased’s will must file it with the probate court as soon as is reasonably possible. An application or petition to open probate of the estate is usually done at the same time. Sometimes it’s necessary to file the death certificate as well, along with the will and the petition.


Completing and submitting the petition doesn’t have to be a daunting challenge. Many state courts provide forms for this.


If the decedent left a will, the judge would confirm that it is, in fact, valid. This typically involves a court hearing, and a notice of the hearing must be given to all the beneficiaries listed in the decedent’s will as well as his heirs—those who would inherit by operation of law if he had not left a will.


The hearing gives everyone concerned an opportunity to object to the will being admitted for probate—maybe because it’s not appropriately drafted or because someone has a more recent will. Someone might also object to the appointment of the executor nominated in the will to handle the estate.


So how does the court decide if a submitted will is the real deal? Many include something called “self-proving affidavits.” The decedent and the witnesses sign the affidavit at the same time the will is signed and witnessed. This is good enough for the court.


Lacking this, however, one or more of the will’s witnesses might be required to sign a sworn statement or testify in court that they watched the decedent sign the will and that the intention in question is indeed the one they saw him a sign.

 Appointing the Executor or a Personal Representative

The judge will appoint an executor as well, also sometimes called a personal representative or administrator. This individual will oversee the probate process and settle the estate.

The appointed executor will receive “letters testamentary” from the court—a fancy, legal way of saying he’ll receive documentation that allows him to act and enter into transactions on behalf of the estate. This documentation is sometimes referred to as “letters of authority” or “letters of administration.”

Posting Bond

 It might be necessary for the executor to post a bond before he can accept the letters and act for the estate, although some wills include provisions stating that this isn’t necessary. The bond acts as an insurance policy that will kick in to reimburse the estate in the event the executor commits some grievous error—either intentionally or unintentionally—that financially damages the estate, and, by extension, its beneficiaries. Many courts may require the appointed executor, guardian, administrator, or trustee to get a Probate Bond before they start their duties.

The cost of a Probate Bond varies. Probate Bonds range in amount, therefore they range in price. Usually, your Probate Bond amount will be based on the value of the estate, along with other factors. You do not need to pay the full bond amount to get bonded. You will pay just a small portion of the total bond amount.

For example, if the court requires you to get a Probate Bond in the amount of $100,000, you will not need to pay $100,000. You might only need to pay $400 – $600 depending on your approval. 

Generally, probate bond costs start at 0.5% of the total bond amount. 

 Beneficiaries can elect to reject this requirement in some states unanimously, but it’s an ironclad rule in others, particularly if the executor ends up being someone other than the individual nominated in the will or if he lives out of state.

 Locating the Decedent’s Assets

 The executor’s first task involves locating and taking possession of all the decedent’s assets so she can protect them during the probate process. This can require a fair bit of sleuthing sometimes—some people own assets that they’ve told no one about, even their spouses, and these assets might not be delineated in their wills.

 The executor must hunt for any such assets, typically through a review of insurance policies, tax returns, and other documentation.

 In the case of real estate, the executor is not expected to move into the residence or the building and remain there throughout the probate process to “protect” it. But he must ensure that property taxes are paid, insurance is kept current, and any mortgage payments are made, so the property isn’t lost and doesn’t go into foreclosure.

 The executor might take possession of other assets, however, such as collectibles or even vehicles, placing them in a safe location. He’ll collect all statements and other documentation concerning bank and investment accounts, as well as stocks and bonds.

Determining Date of Death Values

Date of death values for the decedent’s assets must be identified, and this is generally accomplished through account statements and appraisals. The court will appoint appraisers in some states, but in others, the executor can choose someone.


Many states require that the executor submit a written report to the court, listing everything the decedent owned along with each asset’s value, as well as notation as to how that value was arrived at.

Identifying and Notifying Creditors

 The decedent’s creditors must be identified and notified of her death. Most states require that the executor must publish notice of the death in a local newspaper to alert creditors that she doesn’t know about.

 Creditors typically have a limited period after receiving the notice to make claims against the estate for any money they’re owed. The exact time period can vary by state.

  Paying the Decedent’s Debts

 Next, those creditor claims are paid. The executor will pay all the decedent’s debts and his final bills, including those that might have been incurred by his last illness, from estate funds.

Preparing and Filing Tax Returns

 The executor will file the decedent’s final, personal income tax returns for the year in which he died. She’ll determine if the estate is liable for any estate taxes, and, if so, she’ll file these tax returns as well. Any taxes due are paid from estate funds.

 This can sometimes require liquidating assets to raise the money. Estate taxes are usually due within nine months of the decedent’s date of death.

Distributing the Estate

 When all these steps have been completed, the executor can petition the court for permission to distribute what is left of the decedent’s assets to the beneficiaries named in his will. This usually requires the court’s approval, which is typically only granted after the executor has submitted a complete accounting of every financial transaction she’s engaged in throughout the probate process.

 Some states allow the estate’s beneficiaries to collectively waive this accounting requirement if they’re all in agreement that it’s not necessary. Otherwise, the executor will have to list and explain each expense paid and all income earned by the estate. Some states provide forms to make this process a little easier.

 If the will includes bequests to minors, the executor might also be responsible for setting up a trust to accept possession of estates made to them because children can’t own their property. In other cases and with adult beneficiaries, deeds and other transfer documents must be drawn up and filed with the appropriate state or county officials to finalize the bequests.

  “Intestate” Estates

 An intestate estate is one where the decedent did not leave a valid will—either he never made one or his will is not accepted as accurate by the probate court due to an error in the document or because an heir successfully contested it. The most significant difference is that in the absence of a will that makes his wishes known, the decedent’s property will pass to his closest relatives in an order determined by state law.