What Are the Steps to Probate a Will?

By Beverly Bird

In most cases, unless an estate is very small, the probate process is court-supervised. The deceased’s debts have to be paid and his property has to be distributed to whoever he named in his will. Wills usually appoint an executor, the person who takes care of the details of the process according to court rules and deadlines.

Opening Probate

To open probate, the deceased’s original will is filed with the probate court in the county where she lived, along with a certified copy of the death certificate and a petition to open probate. The court verifies that the will is authentic and the executor takes an oath of office. The court then gives her documentation confirming her position, called “letters testamentary” in most states. Some states require that an executor also post bond, or an insurance policy against any wrongdoing, if the will doesn’t specifically waive this requirement.

Inventory

An executor’s first duty is usually to collect all the assets of the estate and, when possible, secure them in a safe location. A list must be made of everything the deceased owned, whether or not it she mentioned it in her will. Some assets do not require probate, such as life insurance policies with named beneficiaries or real estate passing directly to a co-owner through rights of survivorship. Generally, these non-probate assets do not have to be included in the inventory, but check with an attorney for the law in your particular state. The executor estimates asset values and gets appraisals where necessary. The inventory is then filed with the court.

Protect your loved ones. Start My Estate Plan

Debts

Anyone the creditor owed money to must have an opportunity to make a claim against the estate. Taxes must also be paid, both individually for the deceased’s last year of life and possibly for the estate, depending on its value. Most states require that the executor directly notify creditors with loans secured by collateral, advising them that the estate is in probate. Additionally, a newspaper notice is also generally required to alert creditors that the executor might not know about. Creditors have a set period of time to make their claims, and the executor can then either pay the claims or reject them. If he rejects a claim, the creditor has a right to file a lawsuit with the court to ask a judge to overturn the executor's decision. Mortgages and other secured loans must be kept current.

Distribution and Final Accounting

The executor can distribute the balance of the deceased’s assets to beneficiaries when all debts have been paid or resolved and all taxes have been filed and paid. She also transfers deeds and titles to property as necessary. Sometimes this process requires the permission of the court. After this is accomplished, most states require that the executor file a final accounting with the court, including receipts for everything paid on behalf of the estate. Some states require that the executor appear for a final court hearing to be officially discharged from duty. The estate is then closed.

Protect your loved ones. Start My Estate Plan
Responsibilities of a Will Executor in Massachusetts
 

References

Related articles

How to Prove an Estate Is Insolvent in Connecticut

When a person dies, his or her debts do not simply go “poof” and disappear. If an estate has any assets, all debts must be paid before beneficiaries can inherit anything. If the estate can’t pay its debts, it will be judged insolvent. You don’t necessarily need a lawyer to probate an estate in Connecticut. However, the procedures for settling an insolvent estate can be cumbersome.

How to Probate a Will in Virginia

In Virginia, the probate process is handled by the circuit court in the county where the testator, the person who left the will, lived at the time he died. As of December 2010, probate in Virginia is generally only required when an estate's assets -- minus those that pass directly to a beneficiary, such as life insurance and real estate with rights of survivorship -- total more than $5,000.

Administrator vs. Executor in a Probate

Executors and administrators have much of the same job. Each must guide a decedent's estate through the probate process, making sure his creditors receive notification of his death and payment of his debts, and ensure the estate's remaining assets pass to the decedent’s heirs or beneficiaries.The major difference between the two positions is in the way each receives appointment. Both are representatives of the estate and of the court. They’re duty-bound to act in the best interests of the decedent and to follow the letter of the law.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help. Wills & Trusts

Related articles

When to Notify the Executor of a Will

Called a personal representative in some states, the executor named in a will assumes responsibility for administering ...

The Probating of Kentucky Wills

Kentucky’s probate process is relatively simple compared to some other states. If the person named as executor in the ...

How Long Is Somebody the Executor of a Will?

The executor of a will is in office from the time she opens probate and is sworn in until the court closes the estate ...

Responsibilities of an Executor of Estate in Nashville, Tennessee

The probate division of the Seventh Circuit Court oversees probate of estates in Nashville, Tennessee. The executor of ...

Browse by category
Ready to Begin? GET STARTED