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The Probate Process: What to Do if You’re an Executor

Updated: March 10, 2021

If you are involved with the settlement of an estate for the very first time, it’s a fair guess that you’re wondering what the process is and how long it takes. And the answer you’re most likely to find no matter how far and wide you search the internet is, “it depends.” It involves several steps with the complexity of each varying by a number of factors relevant to the estate in question, from whether or not the deceased prepared a will to how well their assets were accounted for, the debt they left behind, their potential heirs, and plenty more. 

So, if you can’t know how long probate will take, you can at least learn what the process involves and how each step impacts the amount of time loved ones may need to settle an estate. 

Contents 

 

What is Probate? 

Probate is a legal process in which a specialized court oversees the administration of a deceased person’s estate.1 Probate may be used to determine the validity of that person’s (the decedent’s) will as well as ensure the executor (the person tasked with distributing the estate) is enforcing the provisions as directed. 

When a person dies without a will, on the other hand, a probate court will work under its established intestate succession state laws.2 Here, the court will determine who the rightful heirs are to any property in question.3 The court will also settle any inheritance disputes concerning assets and appoint the estate’s executor — all things that would likely have been outlined in a will. 

What Are the Steps of Probate? 

1. Authenticate the Will 

Once a relative files a petition for probate, the first thing the court will do is authenticate the will. Say, for example, the deceased updated their will before passing and the version that was filed along with the petition for probate turns out to be outdated. Family members may have objections to whoever was appointed the will’s executor. Or maybe the court simply needs to determine that the will presented is, in fact, valid. They will seek witnesses who can testify they saw the will in probate signed by the deceased.  

The court will also appoint the executor named in the will or assign the role to the decedent’s next of kin if either none was named or there is no will at all. Either way, somebody must be tasked with acting on behalf of the estate and the role will be recognized by issuing them Letters Testamentary.4 

2. Identify Assets and Debts 

As you’d imagine, the existence of a will can make one-half of this process much more efficient than doing so without a will. However, it’s always possible that the deceased didn’t account for and identify all of their property. It’s also possible they acquired property after drafting their will and failed to update it. 

In any case, the executor will work to identify the decedent’s assets as well as all of their possible unpaid debts. 

3. Pay Debts 

Assets owned by the decedent are fair game to use to pay off past creditors.5 This means car loans, home loans, student loans, and so on can be settled using anything held in a person’s estate if there is not enough cash to do so. 

The executor can be tasked with publishing notice of the decedent’s death6 or notifying any creditors directly,7 and they will also be responsible for filing the decedent’s final income tax returns. Creditors may come calling directly, as well, in which the executor will want to make sure they are only settling valid claims as well as giving ample time to ensure all debts are cleared before moving on to… 

4. Distribute Assets 

Once all debts have been settled and everything within the estate is accounted for, the court will grant the executor permission to distribute assets to the heirs. In the case of intestacy — when the deceased had no will or the will’s validity was successfully challenged and denied — the inheritance is distributed according to the state’s specific intestate succession law. The family members chosen to inherit the estate when there is no will are called distributees and they will be determined based on their relation to the deceased.8 

How Much Does Probate Cost? 

This is another question that earns the dreaded “it depends” answer. 

There is no fixed cost for probate and this is mainly influenced by two factors: first, the state in which the estate is entering probate and second, the overall size or value of the estate itself. Perhaps a more helpful question is what costs are involved in probate? These are likely to include but aren’t limited to: 

  • Court fees 
  • Attorney fees 
  • Accounting fees 
  • Valuations 
  • Executor fees 

To figure out (or at least get an idea of) the costs associated with a specific estate, you will need to search for the laws and guidelines in its state. In California, for example, attorneys are due 4% of the first $100,000 of an estate. They are due 3% of the next $100,000, then 2% of the next $800,000. Attorneys are due one-half percent of $15 million, while the court will determine the appropriate fee for any estate of more than $25 million.9 Meanwhile, in Florida, state law dictates attorneys are entitled to 3% of any estate valued more than $100,000 and less than $1 million, and a range of sliding percentages thereafter.10 

Can Probate Be Avoided? 

Potentially high costs and a lengthy probate process spanning several months or even years is reason enough for many to look for ways to avoid it altogether. It’s important to know that if a will is one component of your estate plan or your deceased relative created one then probate will not be avoided. 

On the other hand, many people choose to save their heirs the stress of probate by creating a living trust instead of a will. As another vehicle used to pass property on to heirs, trusts are not required to enter probate for assets to be passed on. It’s a commonly-noted alternative to establishing a will and while it offers its own set of protections, freedom from probate is often considered one of its benefits. 

Sources

  1. https://www.legalmatch.com/law-library/article/what-is-probate-court.html
  2. https://estate.findlaw.com/probate/probate-without-a-will.html
  3. https://skyviewlaw.com/blog/probate-without-a-will/
  4. https://www.vjrussolaw.com/what-are-letters-testamentary/#:~:text=Letters%20Testamentary%20is%20the%20name,who%20died%20with%20a%20Will.
  5. https://www.thebalance.com/credit-card-debt-and-death-4104435
  6. http://www.legislature.mi.gov/(S(0kpnqwpxdwgmqicliiehsqj5))/mileg.aspx?page=GetObject&objectname=mcl-700-3801
  7. http://www.legislature.mi.gov/(S(0kpnqwpxdwgmqicliiehsqj5))/mileg.aspx?page=GetObject&objectname=mcl-700-3801
  8. https://www.nycourts.gov/courthelp/WhenSomeoneDies/intestacy.shtml

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