Four Basic Steps to the Probate Process

There comes a time in everyone’s life when a loved one passes on leaving you with the process of settling their estate, which is also known as filing a claim with probate.  This is a necessary step to ensure beneficiaries receive the assets of the deceased, as an estate is settled.  This is commonly perceived as a daunting task by the surviving family members.

Making funeral arrangements, selling the home of the deceased is a sad and stressful time.  I know, I have lived through it.  Last year my oldest sister, my Big sister I used to laugh with, hang out with, who taught me many important life lessons, passed on very suddenly from cancer.  She did not have any children so, the four of us, two brothers and two sisters were the heirs to her estate.    I was the closest to her out of the four surviving siblings, so I took on the responsibility of filing a claim with probate.

I could have sworn my sister had a will, however after carefully reviewing every piece of paper in her home, a will could not be found.  I knew I was a beneficiary on her life insurance since we talked daily and she had asked me for the needed information; I found those policies among the paperwork in her desk.

Essentially, this process can be simplified into four basic steps, which I hope will help anyone going through this part of life.  It is my hope outlining these four steps to the probate process, will ease the burden, and make this task that much easier to tackle.  Since there was no will, I explained this to the clerks at probate and I was appointed as administrator of the decedent’s (the person who passed away, in this case my sister) estate which was easily done by filling out a form the clerk walked me through.

1. File a petition and give notice to heirs and beneficiaries. As described above, the probate process begins with filing a petition with the probate court to either (1) admit the will and appoint the executor, or (2) if there is no will, appoint an administrator of the estate. In my case, I followed option #2. Generally, this involved providing notice of the court hearing regarding the petition, which was provided to all of the decedent’s (person who passed on) heirs and beneficiaries. If an heir or beneficiary objects to the petition, they have the opportunity to do so in court. Also, notice of the hearing is published in a local newspaper; this is an attempt to notify others, such as unknown creditors of the decedent, this is the beginning of the proceeding.

2. Following appointment by the court, the personal representative (which was myself) must give notice to all known creditors of the estate and take an inventory of the estate property. I created an EXCEL spreadsheet of all creditors of the estate in compliance with the law; any creditor who wishes to make a claim on assets of the estate must do so within a limited period of time (which also varies by state). This process involved creating an inventory of all of decedent’s property, including real property, stocks, bonds, business interests, among other assets, is taken. In some states, a court appointed appraiser values the assets. When necessary, an independent appraiser is hired by the estate to appraise non-cash assets.

3. All estate and funeral expenses, debts and taxes must be paid from the estate.  The personal representative must determine which creditor’s claims are legitimate and pay those and other final bills from the estate. In some instances, the personal representative is permitted to sell estate assets to satisfy the decedent’s obligations.

4. Legal title in property is transferred according to the will or under the laws of intestacy (if the deceased did not have a will). Since a will could not be found this was a necessary step, following the waiting period to allow creditors to file claims against the estate, and all approved claims and bills are paid. The EXCEL spreadsheet I created outlined the authority to transfer the remaining assets to beneficiaries; since there wasn’t a last will and testament, the probate clerk helped me follow the process in accordance to state intestate succession laws. There may be other details and steps to follow since every estate has unique circumstances, so I advise you to follow whatever probate court advises you to do, and seek the advice of an Attorney as needed.  Most attorneys are empathetic to anyone going through this process, to provide guidance with applicable state laws and compliance requirements.