When a loved one dies, you may go through a court proceeding called "probate." Probate is the legal process by which a person's final debts are settled and legal title to property is formally passed from the decedent to his or her beneficiaries and heirs. Regardless of whether the decedent had a will or trust, the basic steps of probate must be completed. Since the probate process can be a little overwhelming, it helps to remember the four steps: 1) the hearing, 2) collection and inventory of assets, 3) bills, taxes, expenses and creditors, and 4) formal transfer of remaining estate property.
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The four steps to the probate process
When your loved one dies, the probate process will begin in the county of their legal residence at the time of death. If your loved one had a will, the person they named as the executor will take charge of finalizing his or her affairs. If there isn't a will, the court will appoint an administrator. With or without a will, the probate process can be divided into four steps. Here's what you can expect to happen.
Step 1: the probate hearing
- The judge formally appoints the executor or administrator to be the personal representative throughout the probate process.
- The validity of the will is established and the court issues an order "admitting the will to probate," which causes the will to become public record.
- The personal representative is given a document, called the "letters of administration" or "letters testamentary," that grants him or her the full authority to deal with the decedent's probate property and accounts.
Step 2: collection and inventory of assets
The designated personal representative takes an inventory of the estate assets and files this inventory with the court. These assets may include money owed to the decedent or the estate, bank and stock brokerage accounts, and evaluations of real estate or property.
- Money owed to the decedent or the estate includes loans, a final paycheck, life insurance payouts or retirement account(s).
- Bank and stock brokerage accounts includes account numbers and latest balances.
- Evaluations of real estate or property will probably require a professional appraisal.
Step 3: bills, taxes, expenses and creditors
- Any final bills, debts, taxes or claims against the deceased are reviewed for their validity and then paid with funds from the estate. You are not personally responsible for paying these expenses out-of-pocket, even if estate funds are not available.
- Once all debts and bills are paid, the personal representative files a report with the court to account for all income received and payments made on behalf of the estate.
Step 4: formal transfer of remaining estate property
- The remainder of the property is distributed as the will directs or according to state law if there isn't a will.
- Depending on the state, there may be a state-required waiting period before property can be officially sold or transferred, which is usually six months.
- Once all remaining estate property is transferred to heirs and beneficiaries, the personal representative completes a final settlement of the estate that details all dealings.
- The judge then approves the final settlement and the personal representative's duties are complete.
Need more information?
If you need more information on the probate process, contact your local legal assistance attorney. You can find legal assistance offices through the Armed Forces Legal Assistance website.