Probate is the court-supervised process of gathering a deceased person's assets and distributing them to creditors and inheritors. As an executor, your probate process will depend on whether your state has adopted the Uniform Probate Code (UPC), which is a set of probate laws written by a group of national experts. The UPC's goal is to make the probate process simpler, especially for small estates, and to give executors more flexibility in how they proceed. For more information on your role as executor, see our Executor FAQ.
Check the list below to find out whether or not your state has adopted the UPC. If your state has not adopted the UPC, read the section immediately below. If it has adopted the UPC, skip to "The Probate Process in UPC States," below.
Every probate court has its own detailed rules about the documents it requires, what they must contain, and when they must be filed. Bearing in mind that no estate is perfectly typical, here is an outline of the probate process states that do not use the entire UPC. (Almost all states have enacted bits of the UPC.)
You begin the probate process by asking the court to officially make you executor. (To learn more about whether to serve as executor, see Should You Accept the Job of Executor to Settle an Estate?) If you end up acting as executor, you'll need to:
As executor, you're in charge of keeping estate property safe during the probate process. You will prepare a list of the deceased person's assets and, if necessary, get assets appraised. You'll need to:
When the creditor's claim period has passed, you've paid debts and filed all necessary tax returns, and any disputes have been settled, you're ready to distribute all remaining property to the beneficiaries. You'll need to:
Although the law is very similar in the states that have adopted the entire UPC for probate, it isn't identical. You'll need to learn your own state's (and sometimes your own county's) particular rules. Under the UPC, there are three kinds of probate: informal, unsupervised formal, and supervised formal. Here is an overview of each.
Most probates in UPC states are informal. This relatively simple process is used when inheritors are getting along and you don't expect problems with creditors. If anyone wants to contest the proceeding, you cannot use informal probate. The whole process is just paperwork -- there are no court hearings.
The first step is to file an application with the probate court to begin an informal probate and serve as the "personal representative" (the term UPC states use instead of "executor" or "administrator").Once your application is approved, you will have official authority -- often in the form of a document called "letters testamentary" or "letters" -- to act on behalf of the estate. You will need to do the following:
After you have distributed the property, you can close the estate informally by preparing and filing a "final accounting" with the court. Finally, you'll file a "closing statement," stating that you have paid all debts and taxes, distributed the property, and submitted the final accounting.
Unsupervised formal probate in UPC states is a traditional court proceeding, much like the regular probate described above. It is generally used when there is a good reason to involve the court -- for example, if there's a disagreement over the distribution of the estate's assets, the heirs need to be determined (if there is no valid will), or minors are inheriting significant property.
You may need to get the court's permission before you sell the deceased person's real estate, distribute property to beneficiaries, or pay a lawyer -- or yourself -- for work done on behalf of the estate. To close the estate, file an accounting that shows how you handled the estate's assets.
Supervised formal probate is the rarest form of probate. It's used only if the court finds it necessary to supervise the probate procedure -- for example, because a beneficiary can't adequately look after his or her own interests and needs the court's protection. As you might expect, you must get court approval before distributing any property in this case.
States that Have Not Adopted the UPC |
States that Have Adopted the UPC |
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Alabama |
Nevada |
Alaska |
Arkansas |
New Hampshire |
Arizona |
California |
New York |
Colorado |
Connecticut |
North Carolina |
Florida |
Delaware |
Ohio |
Hawaii |
District of Columbia |
Oklahoma |
Idaho |
Georgia |
Oregon |
Maine |
Illinois |
Pennsylvania |
Massachusetts |
Indiana |
Rhode Island |
Michigan |
Iowa |
Tennessee |
Minnesota |
Kansas |
Texas * |
Montana |
Kentucky |
Vermont |
Nebraska |
Louisiana |
Virginia |
New Jersey |
Maryland |
Washington |
New Mexico |
Massachusetts |
West Virginia |
North Dakota |
Mississippi |
Wisconsin * |
South Carolina |
Missouri |
Wyoming |
South Dakota |
|
Utah |
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* Has an informal probate proceeding similar to that used in UPC states. |
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For more information about serving as an executor or personal administrator, see The Executor's Guide: Settling A Loved One's Estate or Trust, by Mary Randolph (Nolo).