Imagine you’ve just lost a loved one. While grieving, you’re also faced with the daunting task of going through probate to validate their will. It’s not easy to imagine! Remember, a will is a legal document that distributes assets, appoints guardianship for minor children, determines the ownership of pets, and more once a person dies. Getting a loved one’s will validated after they pass away entails going through the probate process. Understanding how the probate process works is important for anyone involved. Let’s get into everything you need to know.
What is probate?
Probate is the legal process of administering and enforcing a deceased person’s estate through a probate court. Depending on your loved one’s estate, you may or may not need to go through probate. The key goals of probate are:
- Validate the will (if one exists)
- Identify and inventory assets
- Pay any debts or outstanding taxes owed
- Distribute assets to beneficiaries according to the will or state law
A “probate court” is a special court that specifically handles matters upon death, such as asset distribution, guardianship, and conservatorship.
Who initiates the probate process?
So, who is responsible for going through the probate process when someone dies and has a will? Generally, a will executor will initiate this process, otherwise, one of the beneficiaries named in the will and/or a close family or friend of the deceased person will be required to do so.
A will executor is someone who is named in the will as the person who will make sure the terms of the will are followed after the person dies. This person may be a friend, a lawyer, an accountant, or another professional. Will executors are generally required to dispose of the assets as required under the will, pay any outstanding taxes/debts, and any other administrative tasks the will requires.
The probate process for wills: Step-by-step
We’ll be honest with you: probate is no walk in the park and requires filing the appropriate forms with the court. Let’s discuss what you can expect from the probate process in six steps:
Step 1: Initiating probate
The first step in this process is initiating probate. This must be done within a specific time frame (each state is different). This is generally done by the executor of the will. This generally involves filing a petition with the probate court to start the probate process. This will also involve submitting the original will(s) to the court to validate it. You may also need to provide other documentation in the petition, such as a death certificate or other court forms.
Step 2: Notifying interested parties
The next step is for the executor to identify and notify any named beneficiaries in the will as well as any creditors (if any). This may be super straightforward and easy or it may be difficult. Sometimes notifying interested parties may involve posting notices in a local newspaper or other ways of notifying hard to reach people.
* Filing a petition with the probate court.
* Submitting the will (if available).
* Appointing an executor or administrator.
Step 3: Inventory and appraisal of assets
The next step is for the executor to create a detailed inventory of the deceased person’s assets. This also may be very quick or very long depending on how many assets (and what kind) the person had. For example, if they had an extensive antique car collection, identifying and appraising each one may take a little while.
Step 4: Paying debts and taxes
Debts and taxes don’t always die when you die, folks! Your estate may still be responsible for paying off your debts. During the probate process, these debts will need to be paid. The executor will also prepare and file federal and state income taxes for the final year for the deceased person. Then, there may also be estate taxes that your estate owes; however, this is only applicable to very large estates.
Step 5: Distributing assets according to the will
Based on the instructions in the will, the executor will now distribute any remaining assets (after taxes, fees, and debts paid) to the beneficiaries listed in the will. The executor generally needs to obtain court approval for the distribution plan.
Step 6: Closing the estate
As the last step, the executor will submit a final receipt or form to the court detailing that all of the distributions have been completed. The court will generally provide a discharge that officially closes the estate and discharges the executor of their duties.
Factors affecting the probate process
Probate looks different for everyone. It can take a few months or a few years, depending on several different factors regarding your situation. Here are some things that affect the probate process:
- The presence or absence of a will: Without a will, state default laws (intestate laws) will apply. This may take longer than with a will because the court will need to identify the correct beneficiaries.
- The complexity of the estate: The size and nature of the estate can affect the timeline of the probate process. The more assets (and complex ones), the longer it will take the executor to catalog each one.
- Disputes: Along the way, there may be disputes among the beneficiaries, changes in beneficiary structure (e.g., death of beneficiaries), or debts to be paid.
- Location: Probate laws vary from state to state, so what is required in California may not be the case in Florida. It may take more or less time, depending on the jurisdiction’s laws and processes. Or if beneficiaries live in a different state or a different country, different filings may be necessary.
Tips for figuring out the probate process
So, if you are a will executor or personal representative of an estate, how can you make your own life easier through this process? Here are our tips:
- Hire a probate lawyer: A probate attorney can assist you with this process every step of the way, whether it’s advice on inventorying assets or which forms to file with the probate court.
- Get organized: One of the major headaches of probate is having the right documentation. Make sure you get the right documents in order, such as the death certificate, the will, and financial information to back up each asset, such as deeds and financial statements.
- Talk with beneficiaries: Encourage open dialogue between you and the beneficiaries to avoid unnecessary disputes. Disputes can drag out probate even longer.
- Have patience: Easier said than done, we get it. Acknowledging that probate is a process can help you be at peace with what is to come.
Alternatives to probate
If you’ve read all of this and thought, “Wow, probate sounds like a drag, how can I avoid this for my estate plan,” we’d totally understand. Probate can be a necessary evil but also something that you (as the estate-creator) don’t have to force your beneficiaries to go through. There are several ways for you to avoid probate:
- Trusts: Putting your assets in a trust can help you avoid probate because assets that you put into trusts are outside of your estate. They’re technically owned by the trust. This means when you die, the trust isn’t technically in your estate. The trustee is tasked with distributing the assets.
- Joint ownership of assets: Generally, through the right of survivorship, when one person in the joint ownership dies, the title transfers to the other owner automatically without needing to go through probate.
- Beneficiary designations: If you have certain assets, like life insurance or a retirement account, you can designate beneficiaries through those accounts themselves and the money will be paid out to each beneficiary through the account’s own internal processes.
Keep in mind, you can’t use these options to avoid probate if you are the beneficiary or executor of someone else’s will—the above options are only for people creating an estate plan.
The bottom line
As you can see, probate can be quite time-consuming and taxing. It can feel like a maze, especially if you’re grieving. But remember, there are clear steps to follow, and by understanding what’s involved, gathering the right documents, and seeking expert advice, you can navigate probate with more confidence. And if you’re planning your own estate, consider options like trusts to potentially simplify things for your loved ones down the road. With a little knowledge and preparation, you can make this challenging time a bit easier.
Sara is a bilingual Spanish-speaking attorney and legal advisor from Orange County, CA. Sara is the co-founder of Ovando Bowen LLP, along with her husband Chumahan Bowen, Esq. As a legal advisor, Sara helps her clients navigate the complexities of both business and personal affairs. Sara has been assisting individuals and families since 2009 when she worked at the Long Beach Courthouse, Self-Help Center. Book a Q&A or Full Representation with Sara here
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