How does the probate process work?
The probate process can be broken down into four big steps:
- Getting the process started.
- Gathering information about assets and debts of the estate.
- Resolving debts and distributing assets.
- Closing the estate.
Getting the process started usually requires notifying the local court by filing a request or petition for probate. If there is a Last Will and Testament, the court may ask you to provide it at that time, or at a later date. When there is a will, the court will appoint an estate executor. Without a will, a court will appoint an estate administrator. If you have been appointed, you may want to bookmark this checklist.
What happens next depends on state law and what the Last Will and Testament says. If there is no will, the process is similar except that the court applies state law to determine who gets what.
Generally, the original copy of the will must be located and delivered to the court, accompanied by a petition to the court that includes information about the decedent (the person who died). The executor, or administrator, then collects and inventories all assets, then identifies and finds the beneficiaries (or heirs) and creditors. After gathering all the information, the executor or administrator then pays required debts and taxes, plans how the assets will be distributed, and withholds some money to cover the costs of their services and the probate process fees.
Before debts are paid and assets distributed, however, anyone with a claim against the estate can petition the probate court and object to the distribution of assets. Additionally, estate administrators are often required to get court approval before distributing assets or paying any debts.
How long does the probate process take?
Depending on the size of the estate, the number of beneficiaries, and whether there are any challenges to the proposed distribution of assets, the probate process can range from a few months to over a year or more. A complex will can also make the process take longer.
Smaller estates typically move through the process quicker as there may be less work for an administrator or executor and the court.
To close an estate, or end the probate process, the court may require certain documents before or after the distribution of assets to the beneficiaries. After making final distributions of the assets, and sometimes immediately before making final distributions to the beneficiaries, a final report or accounting must be filed with the probate court. This is when the beneficiaries are given the opportunity to object to any items in the report or accounting that they believe are incorrect or inappropriate. It is also their opportunity to raise any final issues they may have regarding the executor's handling of the estate.
After resolving any issues, the court approves the closing of the estate. Then, the beneficiaries receive their distributions and sign receipts that are filed with the court. Once all the receipts are filed, the court will release the executor or administrator from their duties, and close the probate case.
What can I do if I disagree with the executor or the court's decision?
If you disagree with the court, executor, or administrator's decision, you may want to talk to a lawyer right away. Probate matters can be legally complicated and very time-sensitive. If you do not speak up within a certain period of time, you may not be able to raise your issue later.
How can I avoid probate?
Unfortunately, avoiding probate may not be possible if the person who passed did not set up an estate plan that transferred all of their assets upon death. Fortunately, most states do offer a simpler probate process for individuals with smaller estates.
There are several different ways that a person or married couple can plan their estate to avoid probate. But this takes advanced planning. Legal documents such as a Living Trust, or certain types of titles to property, can help to minimize the number of assets that go through probate.
If you have more questions about the probate process, or making or updating your own estate plan, reach out to a Rocket Lawyer network attorney for affordable legal advice.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.