A Probate Checklist: How to Probate an Estate

Most estates that require probate follow these steps

The deceased can't own property, so it must be legally transferred from their ownership into that of a living beneficiary when they die. This is most commonly accomplished through the probate process.

And what about the decedent's debts? They're paid through the probate process as well, because any person with the power of attorney can no longer act on behalf of the deceased to handle the debts.

The probate process takes place under the supervision of a probate court, and there are certain rules and laws that must be followed whenever a court is involved. They can vary somewhat from state to state, but some steps are common and occur in a prescribed order. 

Getting Started

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The first step in the estate settlement process is to determine whether the deceased left a will. Unless they formed a living trust instead, the estate must typically still be probated even if they didn't leave a will. 

If you don't find a will among their important papers, check with attorneys they might have used to have one drawn up. You can also usually gain access to their safe deposit box if they had one solely for the purpose of potentially locating their will. This is one of those rules that can vary by state, however. You might need special permission from the probate court judge to enter the box. 

If you can't locate a will and if the deceased had no other estate plan such as a trust, the estate is said to be "intestate." All of the same steps still apply. They're just tweaked a little to accommodate the fact that the deceased did not make their final wishes known. 

Open the Estate With the Court

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Opening the estate can be as simple as taking the will to the probate court clerk and filing it. The individual named as executor in the will typically takes care of this task.

The court will most likely schedule a brief hearing, officially appointing them as executor of the estate and giving them a document commonly known as "letters testamentary." This document gives them legal authority to act on behalf of the estate.

Any friend or family member can apply to the court to open an estate when there is no will, but this doesn't necessarily mean that they'll be appointed as executor, sometimes called an "administrator" when the estate is intestate. The court will choose an administrator according to state law. Surviving spouses are usually first in line for the job, followed by adult children, parents, siblings—even the deceased's creditors in some states, although they're usually at the bottom of the list. A creditor would not be appointed unless absolutely no one else is available or willing to take on the job. 

Inventory the Decedent's Documents and Assets

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The executor's or administrator's first official job after appointment is to locate and identify the decedent's assets. This typically involves a thorough review of all their personal papers and bank account statements. There should be documents, links, or hints in there as to the existence of investment and brokerage accounts, stock and bond certificates, life insurance policies, corporate records, car and boat titles, and deeds if any. Some assets will be more obvious, like the home they were living in or the artwork hanging on their walls. 

The executor should take possession of all this paperwork, as well as the decedent's income tax returns for the last three years. It's their job to keep their assets safe and intact pending probate. They'll notify financial institutions that the owner has died so the accounts can be frozen and only they can access them. In the case of that Rembrandt hanging on their living room wall, it's not uncommon for an executor to take physical possession of such tangible assets so they can't "walk off" or otherwise come to harm, particularly if they're valuable. 

Value the Decedent's Assets

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The next step in the estate settlement process is to establish date-of-death values for the decedent's assets.

The balances of financial accounts as of that date should be fairly obvious from statements and records, but assets such as real estate and personal effects, including jewelry, artwork, collectibles, and closely-held businesses, must often be professionally appraised.

If it's expected that decedent's estate will be taxable for federal or state estate tax purposes, the decedent's non-probate assets must also be valued. These are assets that don't require probate because they pass directly to a beneficiary due to some other operation or mechanisms of law, such as a retirement account with a named beneficiary or real estate the decedent might have owned with someone else with joint rights of survivorship. ​

Most estates are not subject to estate taxes at the federal level—only those with values exceeding $11.2 million have to deal with this tax as of 2018. State estate tax thresholds are typically much less, however. 

Pay the Decedent's Income Taxes and Estate Taxes

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The next step in the estate settlement process is to pay any income taxes and estate taxes that might be due. This includes preparing and filing the ​decedent's final federal and state personal income tax returns, preparing and filing any required federal estate income tax returns, and any required state estate income tax returns.

Pay the Decedent's Final Bills and Estate Expenses

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The executor or administrator must next take care of paying the decedent's final bills as well as the ongoing expenses of administering the estate. These expenses can include legal fees, accounting fees, utilities, insurance premiums, and mortgage payments. 

They must figure out what bills the decedent owed at the time of their death and determine if they're legitimate. If so, they'll then pay them from estate funds. State laws typically require that they post a notice regarding the death in the newspaper so creditors they might not be aware of can make claims for the money they're owed. They can decline to pay a debt if they don't believe it's valid, but the creditor has a right to petition the court to try to get a judge to overturn the executor's decision. 

Distribute the Balance to the Estate Beneficiaries

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One of the first questions estate beneficiaries will usually ask the executor or administrator is, "When will I receive my inheritance?" Unfortunately, distribution of the estate's assets to the beneficiaries is the very ​last step in the estate settlement process.

It typically requires court approval. The executor will submit an accounting to the probate court judge, detailing all financial transactions they've made on behalf of the estate. Assuming everything is in order and all creditors who are entitled to payment have been paid, the judge will issue an order allowing them to close the estate and transfer the decedent's assets to their beneficiaries under the terms of their will.

If there is no will, the decedent's property will pass to their most immediate family members in a prescribed order known as "intestate succession." The exact order depends on individual state law but the surviving spouse is invariably the first in line, along with the decedent's children. Other family members typically only inherit by intestate succession if no spouse or children survive the deceased. 

Sometimes Probate Isn't Necessary

Not every estate requires probate. It's always possible that the decedent owned no probate assets—all her property might have been held in trust or they owned everything with a surviving beneficiary so it passed directly to that person or persons. And most states have special provisions in place for very small estates, those that don't exceed a certain value. These estates don't usually have to go through this full-blown probate process.