Probate

Probate is the formal, court-supervised process of carrying out one's last wishes by way of validating their last will & testament (if any), resolving any outstanding debts or taxes, and distributing any remaining assets to rightful heirs. Because probate is a legal process, the rules and procedures vary regionally based on local laws & established practices.

During probate, the court will appoint an executor or personal representative to oversee the estate settlement process based upon whether an individual was named in a last will & testament, or is reasonably qualified to serve as an administrator on behalf of the estate in situations when an individual has died intestate (without a will).

The term probate refers to the legal process the government takes to oversee bringing a close to one's financial life after death and ensuring that one's last wishes are carried out timely and fairly. In short, it’s an opportunity for the court to formally understand what someone died owning, who it’s supposed to pass to, and whether there are any applicable death taxes, such as income tax, inheritance tax or estate taxes.

During probate, an executor is responsible for inventorying any assets of an estate which don’t pass directly to heirs by nature of law, ownership or other direct disposition. Not all assets pass through probate, but for individuals who die without a last will & testament, also known as intestate, most of their assets will need to pass through the formal probate process before being distributed to rightful heirs or beneficiaries.

Understanding the probate process

The length of time necessary to complete the probate process varies depending on a few factors, such as the location (or domicile) of the estate, complexity of local probate laws, the types of assets included in the probate estate, the number and overall relationships between the co-executors & beneficiaries involved in the estate settlement process.

It's helpful to know there are also multiple types of probate, including a simplified, informal probate process for certain qualifying estates, as well as the full, formal probate process which require ongoing supervision by the local probate judge. While the probate process generally takes an average of nine to eighteen months to complete, a good rule of thumb is one year, which is commonly referred to as the "executor's year."

Responsibilities during probate

The probate process requires a certain series of tasks intended to verify & carry out the dispositive wishes of a deceased individual. Essentially, probate provides an opportunity for creditors to learn of the death, present claims against the estate, inventory remaining assets, assess & pay applicable taxes and ultimately divide the remaining assets among rightful heirs and beneficiaries.

This formal process involves a series of time-gated responsibilities, such as a statute of limitations for creditors, which means the probate estate can't be immediately processed. For this reason, it's important to know that any executors or personal representatives are responsible for prudent administration of the probate estate assets throughout the entire process.

Phases of probate

1. Qualify as executor or personal representative of the estate
2. Verify & interpret valid will or estate planning wishes
3. Generate inventory & appraisal of all estate assets
4. Ongoing management & administration of the estate
5. Assess & file any applicable income or estate taxes
6. Divide and distribute remaining assets to rightful heirs

How long does Probate take?

The timeline to complete probate varies based upon a number of factors, such as the size and complexity of the estate, but a good rule of thumb is about 1 year, which is commonly referred to as the "executor's year."  The timeline to complete probate can often increase if the estate holds more illiquid assets, experiences court delays, family disputes etc.

When is probate required?

Contrary to popular belief, creating a will doesn't help an estate to avoid probate— to do that one needs to establish and properly fund a trust. That said, the terms of a will can greatly help outline the probate process and simplify the experience for everyone involved.

While most estates require some version of probate, there are some circumstances where this process is not required. It's important to review the governing probate laws & rules in the area where an individual lived.

When an individual passes away, they leave behind a lot of things. These things could be financial assets, debts or liabilities, legal contracts, vehicles, real estate, as well as all of their personal property and belongings. Either way, during the process of settling an estate, an executor must account for the total estate by taking an inventory of all assets and, when necessary, process these assets through probate.

Joe passed away at 73 years of age, leaving behind 3 adult children. While Joe was proactive with his estate planning and had created a will, it was rather outdated and there were a fair number of financial accounts, personal belongings, real estate and a vehicle which were not specifically mentioned.

Through an act to publicly validate the legitimacy of Joe’s will and carry out those wishes, two of his children were appointed by the probate court in Joe's hometown to serve as the co-executors responsible for passing his estate through probate. During the next 10 months, the co-executors worked with Joe's surviving family members & advisors to find and inventory all assets, assess & pay legitimate creditor claims bills & expenses, and file appropriate court documents & tax forms for applicable state & federal taxes owed.

Upon submitting a final accounting and petition for distribution, the co-trustees were able to divide and distribute all of Joe's remaining assets to rightful heirs, file to close the estate and formally step down from their role as personal representatives of the estate.