This guide is general information to help you understand the process. It isn’t legal advice, and every state has its own probate laws. For advice about a specific estate, speak with a probate attorney.
What probate is
Probate is the court-supervised process of settling a person’s affairs after they die. During probate, the person’s final debts are paid and legal ownership of their property passes to their heirs and beneficiaries. It applies whether or not the person left a will.
How probate begins
Probate is opened in the county where the person, known as the decedent, lived at the time of death.
- If there is a will, it usually names an executor to wrap up the decedent’s affairs. The executor files a petition with the probate court, along with the original will and a certified copy of the death certificate.
- If there is no will, someone, most often a surviving spouse or adult child, asks the court to appoint them as administrator. If family members disagree about who should serve, the court may appoint a neutral public administrator.
The court reviews the will, confirms it is valid, and formally appoints the executor or administrator. Both roles are called the personal representative, and they have nearly identical rights and responsibilities. The court then issues a certified document, called letters testamentary or letters of administration, which banks and other institutions rely on as proof of the representative’s authority.
Once a will is admitted to probate, it and the later court filings become public record. Many states also require a notice of the probate to be published in a local newspaper.
Tip: order several certified copies of the death certificate at the start. You’ll need them for the court, banks, insurers, and other institutions.
Probate and non-probate assets
The personal representative only controls the probate estate, meaning property that falls under the probate court’s authority. Some assets pass directly to someone else and never go through probate, such as accounts with a named beneficiary or property owned jointly with a right of survivorship. If the decedent owned property in another state, a separate ancillary probate may be needed there.
The three main steps
With or without a will, most probate cases follow the same three steps.
1. Collect, inventory, and value the assets
The personal representative identifies everything in the probate estate, including money owed to the decedent such as a final paycheck, loans, or life insurance and retirement accounts payable to the estate. An inventory is filed with the court. Bank and brokerage accounts are listed with their balances, while real estate or valuable collections may need a professional appraisal. Many representatives open an estate bank account to pay final bills and expenses.
2. Pay debts, taxes, and expenses
The representative reviews the decedent’s bills and any claims against the estate, pays the valid ones from estate funds, and rejects the rest. A surviving spouse and children usually receive a family allowance first, set by state law. After that, claims are generally paid in this order:
- Costs of administering the estate
- Funeral expenses
- Debts and taxes
- All other claims
Creditors have a limited time to come forward. Once that period ends, most late claims can no longer be pursued, which gives heirs certainty. The representative is not personally responsible for paying estate debts out of their own pocket.
3. Distribute the remaining property
After the required waiting period, and once valid debts and taxes are paid, the remaining property is distributed to the beneficiaries named in the will. If there is no will, it goes to the heirs set out in the state’s intestacy laws. The representative then files a final accounting with the court. Once the judge approves it, the estate is closed.
The personal representative’s duties
Serving as an executor or administrator is a position of trust, known as a fiduciary duty. The representative must:
- Act in the best interests of the beneficiaries and follow the wishes expressed in the will
- Protect and maintain estate property, for example by keeping it insured
- Invest estate funds prudently and avoid risky speculation
- Keep heirs, beneficiaries, and known creditors informed
- Never favor themselves or anyone else when handling estate property
- Keep careful records for the final accounting
A representative who mismanages the estate, or distributes property that should have gone to a creditor, can be held personally responsible. They are entitled to reasonable compensation, which the court reviews, and may use estate funds to hire attorneys, accountants, and appraisers.
When an estate gets complicated
Probate becomes more involved when there is no will, when heirs disagree or live in different states, when the decedent owned property in more than one state, or when the owner died years ago and the estate was never settled. Each of these adds court filings, deadlines, and documents that have to match exactly.
How probate affects forgotten funds
Money that belonged to someone who has passed away is often held by the state as forgotten funds, sometimes for years. To release it, the holder usually needs proof of who is entitled to it: a death certificate, documents showing the heir’s relationship, and in many cases letters testamentary, letters of administration, or a small estate affidavit.
Lifetime Financial locates these funds, identifies the rightful heirs, and helps them gather and prepare the documents the holder requires, working with attorneys when a claim needs it.