How the Probate Process Works: Information for Executors

Probate is the court-supervised process of gathering a deceased person's assets and distributing them to creditors and inheritors. During the probate process, your role as an executor is to manage the deceased person's estate (that is, the money and property they left behind). An executor needs to understand how the probate process works. This article gives general outlines of the two most common probate processes, but state laws vary. So, you always should check the specific laws in the state where you are serving as executor.

The Uniform Probate Code

What the probate process will look like for you depends on whether your state has adopted the Uniform Probate Code (UPC). The UPC is a set of model laws written by a group of national experts to make the probate court process simpler, especially for small estates.

Only some states have adopted the entire UPC, and others have adopted only portions of it. As a result, the probate process can vary widely from state to state.

Check the list of states below to find out whether or not your state has adopted the entire UPC. If it has adopted the UPC, skip to the section titled "The Probate Process in UPC States," below.

If your state has not adopted the UPC, reading the section titled "The Probate Process in Non-UPC States" will give an outline of the likely probate process in your state. But remember that some states have partially adopted the UPC, so it's possible some of the procedures discussed in "The Probate Process in UPC States" could apply in your state.

States and the Uniform Probate Code (UPC)

States That Have Not Adopted the UPC

* Has an informal probate proceeding similar to that used in UPC states.

States That Have Adopted the UPC

The Probate Process in Non-UPC States

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's an outline of the typical probate process in states that don't use the entire UPC. (Don't forget to check your state laws because almost all states have enacted bits of the UPC.)

Getting Probate Started as the Executor

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:

• File a request (called a petition or application) for probate in the county in which the deceased person was living at the time of death. You will also need to file the death certificate and file the original will (if there is one) with the probate court.
• Publish a notice of the probate in local newspaper according to court rules. Mail notices to creditors you know about.
• Mail the notice to beneficiaries and heirs, as required by the court.
• File proof that you properly published and mailed the notice.
• Post a bond (if required by the court), which protects the estate from any losses you cause (up to a certain dollar amount). The amount of the bond depends on the size of the estate.
• Prove the will's validity by providing statements from one or more witnesses to the will. This is often done by submitting the "self-proving affidavit" that was signed by the witness in front of a notary at the time the will was signed.
• File other documents required by the court.

Administering the Estate

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:

• Get an employer identification number for the estate from the IRS.
• Notify the state health or welfare department of the death, if required by state law.
• Open an estate bank account.
• Arrange for preparation of income tax returns.
• Prepare and file an inventory and appraisal of estate assets.
• Mail a notice to creditors and pay debts (state law might impose a deadline on you).
• If the court requires it, file a list of creditors' claims you have approved and denied.
• If required, file a federal estate tax return within nine months after death. (Most estates aren't large enough to owe federal estate tax, and if they are, you'll almost certainly need the help of an accountant.)
• If required, file a state estate tax return, usually within nine months after death. (Fewer than half the states impose their own tax.)

Closing the Estate

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:

• Mail a notice to heirs and beneficiaries that the final hearing is coming up. (This must be done a certain period of time before the hearing; the court will have a rule.)
• File proof that you mailed the notice as required.
• Get the court's permission to distribute property.
• Transfer assets to the new owners and get receipts.
• After you distribute assets and all matters are concluded, file receipts and ask the court to release you from your duties.

The Probate Process in UPC States

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.

Informal Probate

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 can't use informal probate. The whole process boils down to executor 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'll have official authority—often in the form of a document called "letters testamentary" or "letters"—to act on behalf of the estate. You'll need to do the following:

• Send out formal written notices of the probate to heirs, beneficiaries, and creditors that you know about.
• Publish a notice in the local newspaper to alert other creditors.
• Provide proof that you've properly mailed and published the notices.
• Prepare an inventory and appraisal of the deceased person's assets.
• Keep all estate property safe during the probate.
• Properly distribute the property.

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

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 more closely—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 might 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

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 beneficiaries can't adequately look after their own interests and need the court's protection. As you might expect, you must get court approval before distributing any property in this case.

Additional Help With the Probate Process

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).

Many executors also work closely with probate lawyers. Lawyer's fees can be paid from the estate itself. If your estate is complicated, if you anticipate conflict, or if you simply would prefer to put some or all tasks in the hands of a professional, find an experienced probate lawyer to help.