Probate Resources and Information Center

When a loved one passes away the property that they leave behind is their estate. Their estate must be managed, their bills paid, and their property transferred to others. Each state has laws that define the orderly manner in which estates are settled. Probate is a detailed, court-supervised process that typically takes 6 months to a year. Generally, all estates must go through a probate process. However, if the estate has limited assets, it may qualify for a simplified administration process that is less complicated, can be completed relatively quickly, and is less expensive. Each state has specific laws as to whether an estate must go through formal probate or whether it qualifies for the simple administration process. In addition, while probate is often closely associated with the “reading of the will,” probate is also required if the decedent passed away without leaving a will.

Probate

Probate is initiated when the decedent’s will, if any, is file with the probate court along with the death certificate and a petition to open the probate case. The probate court must review the will and make sure that it was executed according to the requirements of state law and that it is otherwise valid. This may require a hearing. Family members, beneficiaries, and creditors are notified.

During this initial phase of probate, the court will also appoint an administrator. The administrator, sometimes referred to as the executor, personal representative, or estate administrator, is charged with caring for the tasks required to settle the estate. Typically, the administrator is the person who the decedent named in their will to serve as executor of their estate. Upon appointment, the administrator will receive paperwork called, “Letters” or “Letters Testamentary.” The paperwork is the official documentation signed by the probate court judge giving the administrator legal authority to act on behalf of the estate.

With Letters in hand, the administrator can then proceed with the steps necessary to settle the decedent’s estate. These steps include identifying and taking control of the assets in the estate such as financial accounts, real estate, and personal property. The administrator must also pay estate debts such credit card bills, utilities, taxes, and loans. The final step is distributing the remaining estate property to the beneficiaries the decedent named in their will or, in the absence of a will, to heirs as defined by state law. The probate process is overseen by a probate court judge and the administrator must account for the actions taken while settling the estate.

Probate typically takes a few months to a year. One factor that determines the timeframe for probate is the amount of time state law gives creditors to file claims. The administrator is not permitted to begin asset distribution until all debts are paid. Creditors are notified when an estate is opened and are given a deadline to file claims against the estate. Typically the timeframe is 30-90 days following the appointment of the administrator or from when notice is given. Other factors that can impact the length of probate include the amount, type, and complexity of the property in the estate, and whether there are any disputes during the process such as probate litigation.

Probate Litigation

A difficult part of the probate process is when disputes arise. The emotions associated with the death of a loved one along with complicated family relationships can lead to disputes during probate. Family members may challenge the validity of a will, believing that some sort of irregularity occurred during the creation or execution of the will, resulting in them receiving a smaller share than they should have received. Beneficiaries may disagree with how the administrator has handled an aspect of managing the estate. In the absence of a will, heirs may fight over who is entitled to specific assets in the estate. When disputes cannot be resolved by the parties through negotiation, the result may be estate litigation that a probate court judge will resolve.

Intestate Succession

While probate is often closely associated with carrying out the terms of a decedent’s will, probate or some form of administration is also required of intestate estates. An intestate estate is one where the decedent did not leave a will or where the will was invalidated either by an error in execution or after a successful will contest.

The two most significant differences in the process of settling and intestate estate versus a testate estate is the appointment of the administrator and the distribution of assets. With an intestate estate, because decedent did not nominate an executor in their will, anyone wishing to serve as the administrator must petition the court. The court will make the appointment based on the eligibility requirements. Typically, the surviving spouse or child ends up being appointed.

The other significant difference is that because there is no will naming beneficiaries, the decedent’s property will pass to the closest relatives in an order determined by state intestate succession law. This typically means that the surviving spouse and the decedent’s children inherit the entire estate. In the absence of a surviving spouse or children, the decedent’s parents and siblings are next in line to inherit.

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