01Locate and Read the Decedent's Last Will and Testament
In general, there are eight steps that should be followed in order to open a probate estate with the appropriate state court, but some of the steps can be skipped if the decedent didn't leave a Last Will and Testament or left a pile of papers to sort through.
When reading the will, make notes about the following - special instructions regarding the decedent's funeral, cremation or burial; who gets the decedent's personal effects; who gets any specific bequests; who gets the decedent's residuary estate; who is named as the Personal Representative/Executor, Trustee of any trusts created under the will, and Guardian/Conservator for any minor children of the decedent; the date and location where the will was signed; and who signed the Will as witnesses and Notary Public.
The original will should then be stored in a safe location until it can be given to the estate settlement lawyer. Steps 2, 3, and 4 should then be completed and an appointment should be made for Step 5. Hopefully, someone in the family has been told where the original Last Will and Testament is being stored because it's assumed that if an original will can't be found, then the Testator decided to revoke it prior to death:
If the original will can't be found and it's suspected that the decedent stored it in a safe deposit box, then skip Step 2, complete Steps 3 and 4, and make an appointment for Step 5.
What To Do If the Decedent Didn't Make a Will
If the decedent didn't make a Last Will and Testament, then skip to Steps 3 and 4 and make an appointment for Step 5.
02Make a Complete List of the Benficiaries and Fiduciaries Named in the Will
If the decedent had a Last Will and Testament, then make a complete list of the beneficiaries and fiduciaries named in the will (including the Personal Representative, and, if applicable, Trustee of any trusts created under the will and Guardian/Conservator for any minor children), and include as much of the following information as possible:
- Name - as listed in the Last Will and Testament and any other names the person is known by
- Mailing address
- Phone numbers - home, work, cell
- Date of birth
- Social Security Number
- Email address
Aside from this, if you know that an initial beneficiary or fiduciary is deceased, then you'll need to obtain an original death certificate so that it can be filed with the probate court.
03Make a Complete List of the Decedent's Assets
Locate the decedent's important papers, including bank and brokerage statements, stock and bond certificates, life insurance policies, corporate records, car and boat titles, and deeds. Refer to What Documents Are Needed After Someone Dies? for a detailed list of the specific documents that you'll need to locate.
From these documents, make a complete list of what the decedent owned, how each asset is titled, and, for assets that have a statement, the value of the asset as listed on the statement and the date of the statement. In addition, set aside the decedent's prior three years of income tax returns.
If the decedent's important papers are a mess, skip Step 4 and make an appointment for Step 5.
04Make a Complete List of the Decedent's Liabilities
Using the decedent's important papers, make a complete list of all of the decedent's liabilities, which may include:
- Lines of credit
- Condominium fees
- Property taxes
- Federal and state income taxes
- Car and boat loans
- Personal loans, including student loans
- Storage fees
- Loans against life insurance policies
- Loans against retirement accounts
- Credit card bills
- Utility bills
- Cell phone bills
Once you've compiled the list of liabilities, you'll need to divide them into two categories:
- Liabilities that will be ongoing during probate, and
- Liabilities that can be paid in full once the probate estate is opened.
Once you've divided the bills into the two categories, refer to How a Deceased Person's Debts Are Handled Before and During Probate to determine which bills should be paid immediately and which ones can wait until the probate estate has been opened with the probate court.
05Meet With an Estate Lawyer
Prior to meeting with the estate settlement lawyer, also called a probate attorney, hopefully, the family will have been able to complete, or at least have been able to make a good faith effort to complete, Steps 1 to 4, because this will make the first meeting with the estate lawyer go more quickly.
Who should be prepared to attend the first meeting with the estate lawyer? If the decedent had a Last Will and Testament, then the beneficiaries and Personal Representative named in the will should plan to attend in person or at least by telephone.
If the decedent didn't have a Last Will and Testament, then the heirs at law should plan to attend. If you're not sure who the heirs at law are, the estate lawyer will be able to tell you once the lawyer understands the decedent's family tree, so the presumed heirs at law should plan to attend.
Of course, not everyone is open about their estate plan and many people will leave piles of documents that will need to be sorted through. If this is the case, then the family will need to work closely with the estate lawyer to figure out what the decedent owned and owed.
Aside from this, if the decedent didn't leave a Last Will and Testament, then, as mentioned above, the estate lawyer will need to figure out who is entitled to receive the decedent's property after understanding the decedent's family tree.
06Review and Sign the Documents Required to Open the Probate Estate
Once the estate lawyer has enough information to draft the court documents required to open the probate estate, the Personal Representative/Executor and, if applicable, beneficiaries named in the decedent's Last Will and Testament or heirs at law will be required to review and sign the appropriate documents. While these legal documents will vary from state to state, or even from county to county within the same state, they'll generally include the following:
- Petition for Probate Administration
- Oath and Acceptance of Personal Representative/Executor
- Appointment of Resident Agent
- Joinders, Waivers, and Consents
- Petition to Waive Bond
- Order Admitting Will to Probate
- Order Appointing Personal Representative/Executor
- Order Waiving Bond
- Letters of Administration/Letters Testamentary
07Wait to Hear from the Estate Lawyer
Assuming that all of the required court documents are in order, it should only take a few days or weeks for the probate judge to sign the orders necessary to admit the decedent's Last Will and Testament (if any) to probate, appoint the Personal Representative/Executor, and issue Letters of Administration/Letters Testamentary.
Once the estate lawyer receives the signed orders from the court, the lawyer will need to obtain a taxpayer identification number for the estate. This can be done online at the IRS website through the EIN Assistant.
Note that if the probate judge requires that the Personal Representative/Executor post a bond, then the estate lawyer will need to work with the Personal Representative/Executor to secure the bond before the probate estate can be opened.
08Provide Certified Copies of Probate Orders to All Financial Institutions
Once the Letters of Administration/Letters Testamentary have been signed by the probate judge, the Personal Representative/Executor will need to provide a certified copy of these Letters and, in some cases, an original death certificate, to the decedent's financial institutions, along with the taxpayer identification number for the estate.
This is what will allow the Personal Representative/Executor to gain access to all of the decedent's financial accounts. If the decedent owned real estate, then the Personal Representative/Executor will need to provide certified copies of the Letters to the utility companies in order to get the utility accounts transferred into the name of the estate.
While these 8 steps may seem overwhelming, this is only the precursor to the probate process. The real work begins after the Personal Representative/Executor has been appointed.