Probate

Courthouse for estate probate

Probate is the court-supervised process of administering a decedent's estate (generally in accordance with the will, if a valid will is available), ultimately distributing the net proceeds to the heirs.

Probate generally takes more than a year (sometimes multiple years), and involves a number of legal steps. However, certain types of assets automatically bypass probate, and most states have laws that allow qualified estates (usually small) to bypass probate entirely.

Types of Probate

There are generally 5 main variants of probate:

  • None — If the estate qualifies, you may not need to go through probate at all (see Is Probate Necessary? below).
  • Summary — The easiest and shortest form of probate, but usually only for small, simple estates.
  • Informal — The most common form of probate, but requires that there are no disputes the court needs to resolve.
  • Formal — Lengthier and more expensive, but can resolve disputes. Usually requires the assistance of a lawyer.
  • Supervised — Rare and onerous; used when the court finds that an heir needs protection (for example).

Is Probate Necessary?

Probate laws and rules are determined at the state and county level; there are no federal requirements.

In most cases, if the estate contains only assets that do not require probate (see Probate Exclusions below) or the remaining estate is considered "small", then probate is not required.

Even if probate is not required, however, some people choose to go forward with an official probate process anyway (see Benefits below).

Probate Exclusions

A number of asset types are generally exempt from the probate process:

  • Assets with named beneficiaries, such as
    • IRAs, 401Ks, and so forth
    • Life insurance policies (unless the beneficiary is the estate itself)
    • Funds held in Payable-On-Death (POD) account
    • Securities registered in a transfer-on-death (TOD) form
    • Real estate subject to a transfer-on-death (TOD) deed
    • Vehicles registered in a transfer-on-death (TOD) form
  • Jointly owned assets, such as
    • Property held in joint tenancy with right of survivorship
    • Property held in community property with right of survivorship
    • US Savings bond with multiple owners
  • Sundry low-value household items
  • Assets held in a trust

Probate Process

Probate details vary significantly by state, and sometimes even by county, but there are many common elements.

Appointment: The first step is to get the court to formally appoint you as executor (or personal representative, or administrator, or whatever local term is used). This step requires filing documents with the court, notifying potentially interested parties, and obtaining a probate bond if required. See Becoming an Executor for details.

Estate Inventory: You will need to provide the court with an official inventory of the estate (all assets and debts). Often, an initial version of of this inventory will be required along with the probate application, but this inventory can be updated later if additional information comes to light. See Taking Inventory.

In Each State: Personal property (such as cars or stock certificates) are probated in the decedent's legal state of residence, but real estate is probated where the property is physically located. If there are multiple real properties in a single state, you can probate them all in the same probate court, but if the decedent owned property in multiple states, you'll have to go through this process in multiple locations.

And Then: See Timeline for an overview of next steps. Although a complete description of the entire probate process, under all jurisdictions and all possible circumstances, is beyond the scope of this Guide, probate is often so central to the executor's job that many of its key elements are interwoven throughout EstateExec tasks. In general, the probate process concludes with submission and court approval of a "Final Accounting" and a "Probate Closing Statement".

Example first page of Final Accounting report for estate probate settlement

Court Location

It can sometimes be difficult to determine which court to use for a given estate. The particular type of court that oversees the probate process varies by state: it may be a dedicated probate court, a circuit court, a superior court, a general county court, or something else. If you are using EstateExec, Tasks: Start probate (see sample) will help you find the appropriate court for your estate.

As noted above, remember that real property must be probated in the state in which it is physically located, so you may need to go through probate in multiple states.

Costs

It will likely only cost a few hundred dollars for probate court costs ... and thousands of dollars to pay lawyers, appraisers, and possibly a tax accountant. The average estate spends $12,400 on lawyers and accountants (see General Statistics), and since lawyers and accountants typically charge by the hour, having your information well-organized via EstateExec will likely pay for the EstateExec licensing fee many times over.

Benefits

If probate is required, one clear benefit of probate is that you will be following the law. However, even if probate is not required, it can help shield you from potentially unhappy heirs, and it will also get you a document commonly known as your "Letters" (sometimes known as Letters of Authority, Letters of Administration, Letters Testamentary, etc.), which will make it easier for you to prove your authority when dealing with third parties such as banks.

EstateExec Service

EstateExec has arranged for experienced attorneys to file probate cases for EstateExec customers in select locations; availability and cost depend on location of the estate. See Probate Service for details on this optional service; you are also welcome to use your own attorney, or none at all.

Alternative to Probate

If the estate is not required to go through probate, and you decide not to bother with it, you won't get your "Letters" as described above, so instead you can claim assets using a simple sworn statement ("affidavit") that the decedent has passed away, you are the executor of the estate, and are taking possession of the asset. In many cases, you will have to provide a copy of the death certificate as well.

For real property (i.e., land), you will likely have to submit an Affidavit of Heirship to the county courthouse in which the property is located. An Affidavit of Heirship is a simple document stating the location and date of the decedent's death, and the named of the legal heirs: specific requirements vary by state.

See also EstateExec Reference: Manage Probate for instructions using EstateExec during the probate process, including identifying assets subject to probate, generating Inventory Reports, and more.

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