Probate is the court-supervised process of gathering a deceased person's assets and distributing them to creditors and inheritors. The probate court process is used to oversee this doling out of the deceased person's property. Your role as an executor of the estate is to guide your loved one's estate (that is, the money and property they left behind) through this process.
What the probate process will look like for you will depend heavily on whether your state has completely (or almost completely) adopted the Uniform Probate Code (UPC), which is a set of model laws written by a group of national experts. The UPC's goal is to make the probate court process simpler, especially for small estates, and to give executors more flexibility in how they proceed. States are free to adopt these model laws or not, and some adopt them only partially. As a result, the probate process can vary widely. But the states that have fully adopted the laws (UPC states) have similarities, as do states that have not adopted the laws in their entirety (non-UPC states).
Check the list at the end of this article to find out whether or not your state has adopted the UPC in entirety. If your state has not fully adopted the UPC, read "The Probate Process in Non-UPC States," 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 in 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 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 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 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 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
* Has an informal probate proceeding similar to that used in UPC states.
States That Have Adopted the UPC
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.