A step-by-step look at the probate process

Probate is the process of distributing property upon a person’s death. In this article, we’ll go over what the process of probate looks like and how some states apply it according to something called the Uniform Probate Code.

Although probate laws have changed over time, the general process and customs of probate have remained the same. Property and assets that are subject to probate do not include those that are passed onto others by designation - such as life insurance policies, trusts, and payable on death bank accounts. Only property held under the decedent's name at their death is subject to probate. The distribution of this property occurs according to the decedent's will if it is valid. Even when there is no will, the main steps taken in the process are no different. 

In both cases, a person, called an executor, is named to carry out the probate process: either someone appointed by the will, or by the court when there is no will. Upon selection, they are responsible for determining the location and value of the decedent's assets, identifying and paying creditors, bills, and taxes, and distributing the remaining assets to their rightful owners. All of this may happen under the supervision of the state courts, or it can be carried out individually depending on the laws of each state.

What happens during the probate process?

Outlined below is what a typical probate process may look like. Keep in mind that probates are notorious for being time-consuming. You should expect it to take at least a few months. If the will is contested or complications arise, it can take years. 

First, anyone who has possession of the decedent's will needs to file during a reasonable timeframe, so that the will can be legally authenticated. During this time, an application or petition to open probate is usually filed with the court as well. The application usually includes information about the beneficiaries under any will and all heirs of the deceased. Some courts may require a death certificate with the application.

If there is a will and there are no disputes between beneficiaries, the court may allow the probate process to be streamlined if all interested parties sign waivers. This is sometimes called informal probate.

After the Court receives the application or petition, a hearing will be scheduled to appoint an administrator (also known as an executor or the Personal Representative). As previously mentioned, the executor is usually nominated by the deceased person's will. If there is no will, the court will appoint a surviving spouse or an adult child to serve as the Personal Representative of the estate. 

Before the hearing, it is required that all heirs and beneficiaries are notified about the Probate. Furthermore, a notice must be published in the local newspaper so that potential creditors are notified of the process. 

The Court will then issue "Letters Testamentary" to the executor or the Personal representative. This is a document from the Court verifying that one has the legal authority to handle the assets of the deceased. 

An inventory of the estate's assets must be reported to the Court. Then creditors, bills, and taxes must be paid. Then the Court will proceed with a hearing and if no objections are raised, the Court will allow the distribution of the assets. 

The Uniform Probate Code

Some states have adopted the UPC, also known as the uniform probate code. These are a set of laws that were written to streamline the probate process. UPC offers three different types of probate: the informal, unsupervised formal, and supervised formal. 

Informal probate: You can use informal probate regardless of the size of the estate. It also does not matter if you have a will or not. The only time you may not use informal probate is when someone contests the proceeding. If there are no contestors, it is highly advantageous and time-saving to use informal probate, as there are no court hearings.

Unsupervised formal probate: This is just like regular probate in other states - it accompanies a traditional court proceeding. It is lengthier and more expensive than an informal probate, so it is generally used only if there are good reasons for doing so. An administrator or executor in unsupervised formal probate performs the same tasks as their counterparts in informal probate, but they additionally need to schedule court hearings and notify heirs, beneficiaries, creditors. When distributing or selling property, they need to get permission from the court. 

Supervised formal probate: This is used only if the court deems it as necessary - for instance, if a certain beneficiary needs the court’s protection. The procedure is similar to that of unsupervised formal probate; but here, the judges have more say. The judges can require the executor or administrator to submit monthly accountancy or carry out a physical inspection of estate assets and many more. 

The following is the list of states that use the UPC, in alphabetical order:

• Alaska

• Arizona

• Colorado

• Florida

• Hawaii

• Idaho

• Maine

• Massachusetts

• Michigan

• Minnesota

• Montana

• Nebraska

• New Jersey

• New Mexico

• North Dakota

• South Carolina

• South Dakota

• Utah

It is important to understand that even if a state has adopted the UPC, it can still modify its probate system to a certain extent. Therefore, it is important to be aware of the probate laws specific to your state at all times.

Overall, the probate process may range from being fairly simple to being complicated, stressful, and time-consuming. Therefore, you may want to reach out to a lawyer if you have established that you need to go through the probate process. Here at Peacefully, we have made finding an attorney that is right for you easy with our lawyer referral service. If you have any further questions or require any additional assistance, feel free to make use of the concierge service here at peacefully. We assist with referrals to trusted professionals, offer case-specific advice, recommendations, and coordination for you. For more about our concierge service or to schedule a free consultation, click here.

— Lucy Jung