How to Probate a Will: Step by Step

Probate is a court process to administer one’s estate. Probate only involves property in a decedent’s own name. There are times when court administration is not necessary.  Examples include where the estate is smaller, a living trust is used, or property is co-owned or has beneficiaries named. Probate, though, remains common. Fortunately, the laws of most states have simplified the probate process.       

Probate or estate administration may apply whether or not a person has a will. A will can facilitate the process and it’s best for most people to have a will.

Here are the basis steps involved in probate: 

Step 1: Open the Estate

Probate begins when the designated executor or, if there is no will, a person eligible to administer the estate files a petition to begin probate with the court. The court usually is where the decedent lived. We use the term “executor” here, but “administrator” would apply if there is no will.

After the petition is filed and the court confirms the will appears to be valid, the court will appoint the executor who then will have the authority to act on behalf of the decedent. Probate laws require that the court also determine who would inherit without a will. Notice of the appointment is then given to those mentioned in the will and, if different, also those who would inherit without a will. This notice alerts these persons of the probate and, also, allows time to challenge the will or appointment.

What is the Lawyer’s Role?

In opening an estate, a lawyer serves to get the process started and guide the executor throughout. Where smaller estates are involved, very little help may be needed. For a larger estate, though, this assistance will best ensure that what needs to be done is done and done properly. Although a lawyer’s involve is not required, few will take on the responsibility without a lawyer’s involvement.

What Happens If You Don’t Probate a Will or Administer the Estate?

Probate or estate administration is not always necessary as already mentioned. In other cases, though, if this step is not taken title to property will not be changed. This can result is many problems for the intended beneficiaries. Where the will designates beneficiaries other than those who would otherwise inherit, probating a will may be especially important because some states – Missouri is one – limits the time within which a will may be probated. If the will is not probated, the beneficiaries under the will do not inherit, instead those who would inherit without a will do. Apart from this, tax issues may be involved creating entirely different issues. 

Step 2: Identify and Possibly Liquidate Estate Assets

The executor is responsible for locating and cataloguing all assets in a decedent’s estate. These assets can be anything from personal belongings to bank and financial accounts to real estate to others. As you may have guessed, this step may be quite difficult if the estate is large. Importantly, the estate’s assets do not include those assets that pass outside of the estate such as some co-owned property or where beneficiaries are names. Still, the executor needs to be aware of these as they may impact tax.

An executor needs to evaluate whether assets are to be retained or liquidated. If property is designated to go to a specific beneficiary it will, of course, be retained. If not, the decision will need to be made whether it should be sold and liquidated. This can be a difficult decision, especially where stocks and bonds are held. Obtaining the advice of the decedent’s investment planner is advisable.

Step 3: Provide Notice to Creditors

Probate laws require the executor to notify creditors in addition to beneficiaries or those who would inherit without a will. Creditors have a limited time during which they may make a claim against the state. A notice is required to be public in a newspaper. If a creditor is known, that creditor also needs to be given a personal notice.

Step 4: Address Tax Issues

No truer statements has been made than the quip attributed to both Benjamin Franklin and Mark Twain that: “Nothing is certain but death and taxes.” An important responsibility of an executor is to make certain that the decedent’s personal income taxes, the estate’s income taxes, and possibly estate taxes, are addressed. Tax law makes the executor personally responsible for these taxes to the extent funds are available to pay them. As such, the executor in conjunction with the decedent’s tax advisor and lawyer will see that tax issues are addressed.

Step 5: Distribute Estate Assets

Once the executor has identified and gathered assets, paid bills, and addressed tax issues, distributions will be made. The beneficiaries will be given an accounting, showing all receipts and disbursements. Once approved by the beneficiaries, distributions will be made. If there are objections or concerns raised, these will then be resolved by the executor or presented to the court for resolution.

Step 6: Close the Estate

Once all estate assets have been properly distributed and the beneficiaries have approved what the executor did, the court will close the estate and discharge the executor from their duties to the estate. The executor still will need to retain records. This may vary, but typically they should be kept for five to seven years after the estate is closed.

How Long Does Probate Take?

The probate process has a minimum period of time based on the period of time claims may be submitted. With publication time, this minimum is usually within nine months after the estate is opened. Where estate taxes or other issues are involved, it can take much longer, even one or two years. Estate tax returns are due to be filed in nine months after death and the Internal Revenue Service typically will take at least another nine months or so to review the returns. Partial distributions still may be made along the way. Litigation, challenges, and the like, also will impact the time to resolve the estate.

Have More Questions About Probate or Estate Planning?

This provides only a brief outline of the probate process. Please don’t hesitate to send us a message or call at telephone number 217-223-3030 if you have any questions regarding probate or estate administration. Importantly, too, our estate planning lawyers can help plan estates to make the process more efficient and even avoid the need for probate entirely through the use of trusts or other estate planning techniques.