Practical Advice for Navigating Probate

Probate—the legal process of administering a person’s estate after their death—can be a loaded topic. Depending on the size and complexity of the decedent’s (the deceased person’s) estate, how organized their affairs were at the time of their death, the state they lived in, and many other factors, the probate process may vary widely from person to person. 

Of course, the best way to deal with probate is to avoid it. A thorough estate plan that includes a revocable trust dictating where assets go can allow an estate to bypass (or mostly bypass) the oft-tedious probate process. To learn more about what estate planning is and why it matters, read this guide from Vanilla’s legal experts. 

In the event that you find yourself the executor of a probated estate, having a clear understanding of what probate entails and how to navigate it most effectively is a great way to make the process feel less painful—for the administrator and the beneficiaries alike.

Here, we’ll outline the typical steps involved in probate and offer some tips for maneuvering through it as seamlessly as possible. 

1. File a petition

Immediately following a person’s death, a petition must be filed with the probate court in the county where the decedent lived. If the deceased person’s will named an executor (a person tasked with administering the estate), that person is responsible for filing the petition. If the person died intestate (without a will), an interested party may apply to be appointed as the estate’s administrator (also known as a personal representative) in order to carry out the probate process. 

Important things to note when filing the petition:

• You’ll need to present the deceased’s death certificate to the court at the time of filing, so be sure to have it on hand. 
• The petition must be filed in person with the court in the county where the decedent lived.

2. Notify heirs and creditors

After filing the petition and being legally recognized as the estate’s executor or administrator, it’s that person’s responsibility to notify relevant parties of the probate proceedings. Typically, this includes heirs, beneficiaries named in the decedent’s will, and any creditors the estate is indebted to. 

Important things to note when notifying interested parties:

• Some counties require a death notification to be printed in the local newspaper. 
• The amount of time creditors have to file against the estate—known as the claims period—varies from state to state. In some states, like California and Tennessee, the claims period is four months.

3. Inventory and appraise assets

The executor or administrator must collect and inventory all of the decedent’s assets that are subject to probate, and then arrange to have them appraised. The inventory and appraisal are then submitted to the probate court for review. 

What types of assets are subject to probate? 

As with nearly everything related to probate, which assets are subject to probate depends on a number of factors. However, probate is typically relevant to assets that were owned exclusively by the decedent and do not have pre-designated beneficiaries (like life insurance policies and IRAs). Additionally, in states that recognize community property or allow contracts like payable-on-death or transfer-on-death accounts, more assets may be allowed to bypass probate. 

Important things to note during inventory and appraisal:

• Relevant assets typically include real estate, bank accounts, retirement accounts, investment accounts, business interests, and tangible personal property. 
• In some states, an estate may be small enough that inventory and appraisal isn’t necessary. (For example, in Florida and Texas estates valued at $75,000 or less may qualify to skip a formal appraisal.)
• In some states, the inventory and appraisal must be submitted within 60 days of being named executor or administrator of an estate.

4. Pay debts, bills, and taxes

Before the estate can be distributed to beneficiaries, the executor or administrator needs to identify and settle all outstanding debts, taxes, and claims, as well as collect any money that’s owed to the estate. This may also include expenses incurred after the person’s death, like funeral costs and administrative fees. 

The executor will also be required to file an estate tax return if one is due, within nine months from the date of death. The estate itself may also need to file income tax forms, though this varies by circumstance. 

Important things to consider when settling debts:

• This step cannot be carried out until the claims period has ended, to ensure all creditors have had time to file claims against the estate. The executor or administrator will then need to determine whether claims are legitimate before settling them. 
• Paying final bills for the decedent may require you as the executor to do some digging. For example, you’ll likely need to gain access to online portals like bank accounts and email inboxes that belonged to the deceased, in addition to sorting through filing cabinets, checkbooks, and any other personal records. 

5. Distribute assets

One of the reasons for  settling debts, taxes, and collecting any money owed is to know the final, uncontested balance of what remains in the estate. Then, the executor or administrator will distribute assets to beneficiaries named in the will or, if there is no will, to heirs as determined by the state’s laws. 

Important things to know when distributing assets:

• If the estate is insufficient to cover owed debts and taxes, the executor or administrator may have to petition the court to sell the decedent’s real estate to cover the costs, even if the will states that the property should pass to heirs. 
• The court will oversee the distribution of assets to ensure the process is carried out either according to the decedent’s will or according to state laws. 

6. Close the estate

The final step in the probate process is to close the estate by submitting receipts and records of settlements and distributions to the overseeing court. After the court approves this accounting, it will file an order to relieve the executor or administrator of their role. 

Important things to know when closing the estate:

• The executor or administrator should provide copies of the final closing documents to any beneficiaries or related parties to ensure everyone is aware the estate has been closed. 
• In many cases, the executor or administrator of a will receives compensation for their services. The amount varies depending on the state the decedent lived in, the size of the estate, and/or terms laid out in the will itself. 

Determining if you need a probate lawyer

Probate can be a dreaded word—the process has a reputation for being long, tedious, and expensive. However, this turns out to be a myth in many cases. Over the years, many states have streamlined their probate processes to be more navigable and affordable for small or straightforward estates. 

There remain many situations in which probate can live up to its infamous reputation, and in these the executor or administrator might want to consider hiring a probate lawyer to guide the proceedings. 

Here are a few examples of cases in which legal assistance may be needed: 

• Large or complex estates: If an estate has significant assets, multiple beneficiaries, or other legal issues
• Tax implications: Large estates can run into complicated federal and estate tax laws
• Contested estate: If the will is contested or there are disputes among the beneficiaries regarding the will’s designations, interpretation, or validity
• Legal or liability concerns: If the executor has questions, is confused about their responsibilities, or is concerned about their personal liability in administering the estate

A solid estate plan is one of the best gifts you can leave to your loved ones. Get started with this list of everything you should include in your will. 

The information provided here does not, and is not intended to, constitute legal advice or tax advice; it is provided for general informational purposes only. This information may not be updated or reflect changes in law. Please consult with your financial advisor or estate attorney who can advise as to whether the information contained herein is applicable or appropriate to your particular situation.