Probate Process

The petitioner (often an heir or an attorney hired by an heir) files the probate case in the state in which the decedent lived. Probate usually must be filed at least a few days after death and less than 2 years after death in many states, unless an extension is granted.

A Personal Representative (aka Executor if male or Executrix if female) is appointed to help facilitate the probate process on behalf of the estate, distribute payments to creditors, and distribute assets to heirs.

The decedent’s wishes are carried out.

Their taxes and debts are paid.

Their assets are distributed to the heirs and beneficiaries.

Probate Court (aka Surrogate’s Court, Orphan’s Court, Ordinary Court, or Chancery Court): the court that oversees the proper administration and distribution of the assets of an estate. Decedent: The deceased person for which the estate is being probated.

Personal Representative (aka Executor if male or Executrix if female): The person(s) who is nominated in the decedent’s Will and/or appointed by the court to assist the court in handling the probate case.

Beneficiary: An individual named in a will, trust, or an insurance policy to receive assets upon one’s death. Beneficiaries can be a family member, friend, or an organization. A beneficiary may also be one’s heir, but not necessarily.

Heir: A person who is related by blood or is the decedent’s spouse and is entitled to receive assets from the estate. Heir is often the title used for someone who is entitled to receive assets of an estate when there is no Will, whereas a devisee or beneficiary are often the title used for someone who is named in a Will to receive such assets.

Registrar: This is the person at the court that is designated to oversee the probate process.

Informal Probate.

Formal Probate.

Supervised Probate.

Summary Probate (aka Simplified Probate).

Most common and simplest form of probate.

Requires that the petitioner have the original copy of a valid Will, or, that there is no Will at all.

Requires minimal court supervision and there is oftentimes no court hearing at all.

Much less expensive than a formal probate and is ofen finished within weeks.

A petitioner files an application for probate with the court, along with the original copy of the decedent’s Last Will and Testament, if any.

“Testate” means that the decedent died with a Will and “intestate” means that they died without a Will.

Most states require a minimum of a few days after death before informal probate can be filed, and some states require that informal probate is filed within a certain amount of time after death, such as 1-2 years.

The petitioner may be:

Spouse, adult child, parent, or sibling.

Heir.

Person nominated as the Personal Representative in the Will.

Department of Veteran Affairs if the decedent was a Veteran.

Any creditor including a state agency such as the state Medicaid agency. Creditors often must wait a specified period of time after death before they can seek to be appointed as Personal Representative, oVen about 45 days give or take.

Anyone with a legitimate interest in the estate.

Public fiduciary if no one is willing or able to serve..

Notice of the probate application and application for appointment of the Personal Representative must promptly be given to the heirs and any other “interested persons.”

Notice may often be hand-delivered, mailed, or published in a local publication if they cannot be located.

Interested persons would be:

Spouse, adult child, parent, or sibling.

Any person named as a beneficiary or heir in the Will.

Any person or government agency that has filed a Demand for Notice with the court. For example, the state Medicaid agency may file a Demand for Notice with the court so that they are notified of all court filings and orders regarding the estate to which they have a claim.

Any Personal Representative of the decedent whose appointment has not ended.

Anyone with a valid property right or claim.

If anyone else is entitled to be the Personal Representative, they will have to sign a form that waives their right to be the Personal Representative and gives consent to the party seeking to be the Personal Representative. If nobody else is entitled to be the Personal Representative, the courts will oVen appoint the Personal Representative promptly.

Unless the requirement for a bond is waived in the Will, they will also have to sign a waiver for the Personal Representative to not be required to be bonded, otherwise the Personal Representative will be required to obtain a surety bond before the courts will appoint them as Personal Representative.

Trust companies, public fiduciaries, title insurance companies, or national banking associations are not required to be bonded.

The heirs usually have about 4 months in most states to challenge the Will or appointment of the Personal Representative. If there is no challenge to either, the court will approve the application, appoint the Personal Representative, and issue the Letters Testamentary (if there is a Will that appoints a Personal Representative) or Letters of Administration (if there is not a Will that appoints a Personal Representative) which both give the Personal Representative authority to administer the estate. If there is a challenge, a Formal Probate proceeding will be required.

The heirs can still challenge the Will even after 4 months IF a new Will is discovered.

If an heir was not given proper notice, they often have a much longer period of time to challenge the Will; sometimes as much as a couple of years.

Shortly after they are appointed, the Personal Representative must give notice of their appointment as Personal Representative and a copy of the Will, if any, to all heirs and interested persons.

Also within a short while after they were they were appointed, the Personal Representative must publish a Notice to Creditors in a publication in the county in which the decedent resided for 3 consecutive weeks in order to give ample notice to any creditor that the decedent has an estate that is being probated.

In most states, creditors have 4 months to file a claim against the estate by filing a claim directly with the court or sending a bill to the Personal Representative at the address on the notice.

If a creditor is known to the Personal Representative, the Personal Representative needs to have mailed those particular creditors a notice directly, in which case they usually have a shorter time to file a claim after it was sent, often 60-120 days.

If a claim is rejected, the creditor would have to sue the estate in order to seek payment.

If the estate has insufficient funds to pay a valid claim, state law will determine who gets paid, in what order, and how much. The order of priority is generally as follows:

The expenses of administering the probate, including compensation for the Personal Representative and attorney.

Funeral expenses.

Federal debts and taxes.

Medical expenses from the decedent’s final days.

State debts and taxes.

All other claims.

No creditor in the same category gets preference over another, and creditors in the last group above will be paid a pro rata share if there are insufficient funds to pay them all, which is a percentage of debt that the creditor’s claim represents relative to the total debts owed.

The Personal Representative will identify and secure all of the decedent’s assets which often entails:

Creating an itemized inventory and estimated value of the assets and send a copy to the heirs and interested persons.

Recording a certified copy of their letters of appointment with the county to prevent anyone else from trying to sell the real estate.

Deeding the real estate to “Estate of John Doe by Jane Doe, Personal Representative” OR “Jane Doe, Personal Representative for the Estate of John Doe.”

Obtaining an EIN (employer identification number) from the IRS for the estate.

Setting up a checking account for the estate.

Providing the letters of appointment, death certificate, and/or EIN letter to any financial institution with which the decedent has assets.

The Personal Representative will create an itemized inventory and estimated value of the assets and send a copy to the heirs. They may also be required to send a copy to all heirs and interested persons. For non-cash property such as real estate, art, or collectables, it may be necessary to get an appraisal to determine the appropriate value.

The court may allow the Personal Representative to sell assets to pay creditors.

The Personal Representative can also request authorization to administer the estate under the Administration of Estate Act (IAEA) which would grant them full authority to be able to conduct most estate transactions without prior court approval. This authority should be sought in every probate case unless the provisions of the Will preclude it.

If the Personal Representative has full authority, they can list the real estate for sale and once they have an offer, issue a Notice of Proposed Action to all of the heirs stating the terms of the proposed sale. The heirs will then have about 15 days to pose any objection. If there are no objections, the sale may proceed without court approval.

If the Personal Representative does not have full authority or if an heir poses an objection to the sale of a property, then a notice of the sale must be published in a generally distributed local publication, and the attorney or Personal Representative will apply for a confirmation hearing for the court to approve the sale or hear the objection.

The Personal Representative will pay any valid debts, file and pay the decedent’s final taxes, and pay any fees owed.

The Personal Representative will file a Petition for Discharge which demonstrates that all valid debts/taxes/fees have been paid and detailing the final asset distribution plan.

If desired, the Personal Representative can file a Petition for Approval of Accountin to have the court review and approve the final accounting of the asset distribution or to help resolve any accounting or distribution issue. This is optional.

When the probate is not supervised, the Personal Representative can simply provide the interested parties with a copy of the accounting and get a waiver from them to confirm that they have no objections to the asset distribution.

Once the final accounting is approved or the heirs have signed a waiver, the Personal Representative can proceed with distributng the remaining assets.

Once the waiting period for creditors to file a claim has come to an end, all of the assets that need to be sold have been sold, all debts/taxes/fees have been paid, and all asset distributions to the heirs have been made, the Personal Representative will file a Closing Statement, which details the final accounting of the asset distribution, and send a copy to all heirs and interested persons.