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Estate Planning | Probate

Everything You Need To Know about the Probate Process

8 min read
Philip Ahn, Attorney

by Philip Ahn, Attorney

People don’t usually find themselves in the middle of probate until after their loved one has passed. If you’re reading this now, please let us offer you our sincerest condolences at this difficult time. Probate is a legal process that involves determining what to do with a deceased’s estate and how their remaining assets, such as their house, money, and heirlooms will be distributed. There is no set time limit on the probate process. It is dependent on many factors including the absence of a will and your state’s particular guidelines. 

While the probate process can be emotional for all the parties involved, you must familiarize yourself with the process, including how it works and what you can expect from it. 

We can connect you today with a probate lawyer in your area to discuss the entire procedure.

What Are the Stages of Probate? 

You will need to go through six stages of probate. The first step is to find the deceased’s will and death certificate and file your petition with the court. You must file this petition in the county in which the deceased lived when they passed away, so if you live out of state or a few towns over, you will have to consider additional travel expenses and most likely take time off work. Depending on where you live, the judge may preclude you from being an executor, for example, if you live in a different state from the deceased. 

When you file a probate petition, you must request that a probate case be opened. Next, you will need to get the petition notarized. This will usually cost you as little as $15. Keep your wallet handy, though, as you will then have to pay to formally file the notarized petition. This will usually cost you around $175, however, this fee can vary from county to county and from state to state. Once the petition is filed, the court may order a hearing to approve an executor. 

If a will exists, an executor may have already been named. If so, that person can either accept or deny the request to be the executor of the deceased’s estate. If you agree to be the executor, you will be responsible for distributing the assets set forth by the deceased’s will and their wishes. Being an executor is a time-consuming process and one that you should think about before accepting. Sometimes, individuals who aren’t familiar with the deceased’s estate might be named executor, which can put them in an uncomfortable position. Furthermore, holding executor duties could interfere with your work schedule and pose problems if you live far away or out of state. 

If you do not feel comfortable being an executor, the court will appoint someone new. In some cases, those who are named executors but don’t feel comfortable with it may feel guilty for declining the position. Just remember that it’s okay to find someone else who you think is better suited for the job. Estate planning as a whole can be a complex, tedious process that doesn’t always fit in with everyone’s lifestyle. If you prefer to go with someone else, you can find out if the deceased named a backup in their will, or allow the court to appoint an estate administrator or personal representative.

Once an executor has been named, they will have to present all of the deceased’s assets to the probate court. This will include things such as their existing real estate, personal belongings, bank/retirement accounts, and any stocks. Next, the executor will have to pay all applicable taxes, including income tax returns, on the deceased’s estate. This may either include a Form 1040 or 1040-SR form from the year they died, as well as any years in which a tax return was not filed. 

The executor will also have to pay any outstanding bills and debts. Unfortunately, debts don’t go away after someone dies, which is why their estate is used to pay anything outstanding. If you are taking over as executor, be sure to provide notice to all of the deceased’s creditors that probate is in process. 

Once these debts are paid, however, the remaining assets will be given to the appropriate heirs. After this, the executor will provide records and receipts of everything to the court, which will then close out the estate and finish the probate process. 

Is Probate Always Necessary? 

No, it is not. Probate is usually only necessary in cases where the deceased did not name beneficiaries.  If all of their assets are a part of a living trust – a legal document that dictates where your property, investments, and other benefits will go after you die, probate may not be required.

It’s best to think of probate as a necessary process in complex estate planning matters. For example, if any of the real estate assets such as the home or property are in the deceased’s name only, then probate will be necessary in order to determine who this particular asset will go to. Here are some common situations in which probate is necessary 

  • The deceased doesn’t have a surviving spouse
  • The deceased has a large sum of money 
  • The deceased didn’t have a will, or the validity of the will cannot be confirmed

Who Can Apply for Probate? 

If the deceased had a will, then the person they name executor is technically the only one who can file for probate. If the deceased did not have a will, then one of their adult relatives can apply for a letter of administration. This is a formal document that grants the petitioner the right to access the deceased’s estate, as well as pay off their debts and taxes. The relative who applies for a letter of administration essentially has the same rights and obligations as the executor but isn’t formally named as one. 

The biggest difference between an administrator and executor is that the administrator must adhere to intestacy laws, which simply means that the deceased’s relatives will most likely be the recipients of the estate and subsequent assets. 

When Does Probate Start? 

In most cases, probate occurs between one to three months from the date of death. This time frame, however, can vary from state to state. In New Jersey, for example, probate can be filed as little as 10 days from the date of death, whereas Texas residents have up to four years from the date of death to file a petition for probate. 

In all probate cases, the general consensus is that the process should be completed within one to two years from the person’s date of death. 

How To Prepare for Probate

Each state has its own rules when it comes to handling probate. As such, preparations may vary depending on where you’re located within the United States. However, you may have to do the following in order to prepare for the probate process:

  • Publish a notice of the impending probate in your local newspaper. This ensures that everyone who could be affected by the deceased’s death and the individuals involved are made aware of their rights. If you’re not sure whether you have to do this, contact your local probate office or estate planning attorney who can advise you on your state’s particular laws
  • Obtain an employer identification number (EIN) for the estate from the IRS. This EIN may be required in order to file federal income taxes
  • Make copies of your petition to file for probate, as well as any probate notices you send to the deceased’s creditors. Check with your probate office and/or attorney to find out if there is a specific deadline to complete this
  • Make a list of all the creditors’ claims that have either been paid or denied. This may not be necessary depending on the state you live in, but it’s better to have copies of this just in case
  • Open a bank account for the primary use of the estate. This is used for keeping track of and consolidating the deceased’s cash that’s needed to pay bills and other expenses 

Do You Need Help with Estate Planning? Unbundled Legal Help Can Assist You

The probate process can be complex and time-consuming, which is why having an experienced attorney to consult and help you with the process is important. Furthermore, the probate process can be costly, which may deter executors from hiring a lawyer even though they should. 

Unbundled Legal Help can be a solution. When you hire a lawyer through Unbundled Legal Help, you’re only paying them for the parts of your case you need help with, such as identifying assets from the estate and collecting proceeds from the deceased’s life insurance policy. You will do many of the less legal-intense tasks and save money. 

At Unbundled Legal Help, you won’t have to pay your lawyer for more than what you need assistance with, meaning that you’re getting the help you need at a time when you most need it. We can put you in touch today with a local probate lawyer to discuss your situation

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