How to determine if probate is necessary, and dealing with probate courts

On By After.io Staff
using an obituary template
  • Whether an estate will go through the full probate process is determined by state law.
  • Full probate can take up to several years, though other forms of probate for smaller estates can be resolved within weeks or months.
  • Probate filings are included in the public record, so privacy concerns may arise.
  • Full probate proceedings can be costly and usually require a payment of 3-8% of the deceased’s estate.

Probate is the process by which an executor will determine the authenticity of your loved one’s will and carry out its instructions. Sometimes it is not necessary at all. A number of states allow estates to undergo a reduced probate process or avoid it altogether if, after a will has been identified and submitted, the estate’s value does not exceed a threshold once debts are settled and no assets exist that require legal transfer. However, since the difficulties associated with these simplified probate processes are minimal, this article will prepare you for navigating the twists and turns of full probate. 

So how do you know if your loved one’s estate needs to go through full probate? The laws of different states vary, but there are some common characteristics among all estates whose settlements require the full probate process. They are as follows:

  • If the estate is of a certain size according to the laws of the state. 
  • If any assets of the deceased identify the deceased as the sole owner, and the estate is above a certain size according to state law (some states exempt motor vehicles from this).
  • If real estate was owned by the deceased with other listed owners who were not named as beneficiaries in the will.
  • If the named beneficiaries on a certain type of payable-on-death account (such as a bank account, annuity, life insurance policy, or others) are themselves deceased.
  • If the accounts in the previous point have no named beneficiary.
  • If your loved one died without a will, and they left property that requires distribution.
  • If a wrongful death is suspected.
  • If the will has problems, such as not complying with state law, or if there is a challenge to its integrity.

Once you have determined that your loved one’s estate will need to undergo probate, there are usually six steps you need to take to complete the process. Firstly, you need to authenticate your loved one’s will. This is achieved by filing your loved one’s will with the probate court in the county of your loved one’s primary residence. For probate to open, you will need a death certificate, in addition to other documentation that is generally given to you by the probate court. After you file the will, a judge determines its validity. The validity of the will may be challenged by other family members or beneficiaries. If no will of your loved one exists, then there are several other forms required to open probate, and the process may involve all of your loved one’s heirs.

Next, you will need to find out who the administrator or executor of your loved one’s will is. This person is named in the will, but if a will does not exist, then the next of kin is usually named as such for probate. Once a responsible person is designated, they will receive the legal right to act on behalf of the estate and supervise necessary transactions. The third step involves giving notice. If you are the executor of your loved one’s estate, it is very important to track down any debts your loved one owed. If this is not possible, obtain their credit report, lock their credit in place, and notify all the credit card companies with which your loved one had an account. Once this is done, the probate court will require that you publish a notice of your loved one’s passing so that creditors may claim any debts your loved one owed them. These are not final, as you may dispute these at any time, at which point the intervention of a judge is necessary. Paying or locating these debts can assist you in probate’s next step. 

Locating and valuing your loved one’s assets comes next, and it can be very difficult. In pursuit of this, make use of your loved one’s tax returns, insurance policies, or other relevant documents. Reach out to close associates of the deceased to see if they are aware of any hidden assets. Once all your loved one’s assets are located, they will need to be appraised and included in an itemized list, which the court will use to determine the estate’s value. 

Next, you or the executor will need to settle your loved one’s debts and taxes. If the estate is insolvent, meaning it has more debts than assets, then the executor will settle the estate’s debts with creditors in an order determined by state law or the judge presiding over the probate. The estate’s taxes will then need to be paid. Settling debts and paying taxes are an important step in the probate process, as no assets may be distributed to beneficiaries before these matters are settled. Distributing your loved one’s assets is the final step in probate and requires permission from the court. This is done according to the will. Throughout the process, it is important to follow the law to the letter, as not doing so could make you personally liable for any missteps. For this reason, strongly consider availing yourself of the resources and guidance of an estate attorney. 

The whole probate process can be overwhelming. Remember, though, that if your loved one named you executor of their estate, it was because they trusted you to honor their final wishes. Let this comfort you in times of distress.