Understanding the Probate Process

understanding the probate process

What Is the Probate Process?

Probate is the process dividing of an estate after an individual passes away or becomes incapacitated. This generally involves proving a will in front of a probate court. 

The main representative roles involved in the probate process are listed below: 

  • Guardian: An individual appointed by the court to care for a child or someone deemed physically or mentally incapable of making decisions. 
  • Executor/Personal Representative: An individual appointed by the court to settle the deceased’s estate, including paying debts and managing legal claims. 
  • Conservator: An individual appointed by the court to handle the affairs of someone socially functioning but mentally incapable of handling basic matters, such as managing their finances.

Types of Probate 

Different types of probate could be filed based on the situation:

Probate With a Will 

If an individual passes away with a will in place, the designated executor will be in charge of beginning the probate process with the court. 

Probate Without a Will 

If an individual passes away without a will, an intestate should be filed. An intestate allows the deceased person’s estate to be automatically sent to probate. The court will decide how to divide the estate. This can be aligned with the deceased person’s wishes but could be conflicting in some instances. 

Informal Probate

Informal probate occurs when there is no disagreement between inheritors or problems with creditors, meaning no court proceedings except for filing paperwork. This process is usually less expensive than formal probate. 

Unsupervised Formal Probate

Unsupervised probate is used when a court must be involved in the probate process. This can occur if the distribution of the estate’s assets is in question, the deceased has no valid will and heirs need to be determined, or if minors are inheriting significant assets.

Supervised Formal Probate

Supervised format probate is necessary if an heir is n=uncapable of looking after their interests and needs court involvement to protect the estate. This is only used when the court deems supervision necessary, so it is rarely implemented.

How to Start and Complete the Probate Process in 7 Steps 

  1. File a petition to open an estate with the state. The executor needs the deceased’s death certificate, will and a probate request filed in the county where the deceased or incapacitated lived. Other documentation required by the court should be filed at this time. 
  2. Determine if a probate bond is needed. The court will determine the probate bond requirements. The bond amount is normally 0.5% of the total estate value and ensures the executor handles the assets properly. 
  3. Receive notice of probate. Appointed executors and custodians will receive permission to handle estate transactions with a letters testamentary. Next, a notice of probate will be published in a local newspaper and all creditors and heirs will receive notice via mail with proof for the court. 
  4. Locate the decedent’s assets. Identify all assets for protection during the probate process through insurance policies, tax returns, bank statements or investment accounts. For real estate, the executor should ensure all mortgages, taxes or other debts have been paid. 
  5. Determine estate value. An appraiser will determine the date of death values (value of each asset) at the time of death. This includes bank, investment, and retirement accounts (statement values), publicly-traded stocks as well as personal effects, business interests, and real estate properties (typically determined by an appraiser).
  6. Settle estate debts. The representative then pays all the decedent’s debt, bills, taxes and creditor claims. Estate taxes are usually due within nine months of the date of death.  
  7. Close the estate. The court will close the estate once debts are paid, tax returns are filed, and the claim period is over. Afterward, the remaining assets will be distributed among beneficiaries. 

Heirs and beneficiaries must be given notice of the final hearing. Receipts will be provided and the executor can request to be relieved of their duties.

See the graphic below for an outline of the formal probate process:

How Long Does the Probate Process Take? 

On average, probate processes take a few months to over a year. The length of each probate process will differ depending on the circumstances. Probate processes that don’t include a will, require court involvement, or have issues with creditors take longer to settle. 

How Much Does the Probate Process Cost?

The average probate process costs $10,000 to $15,000, including court costs, appraiser fees and other expenses. The exact expense varies from state to state and even county to county. 

When required, probate bonds on average cost 0.5% of the estate size. For example, a $50,000 estate would require a $2,500 premium. Submit a bond request for the exact amount. 

Do I Need to Be Bonded for the Probate Process? 

Visit our Probate & Estate Bond Guide to learn more about the bonding requirements 

for guardians, VA fiduciaries, personal representatives and executors and how to get your surety bond quickly and easily! 

If you need a court bond but are unsure what type, read our Court Bond Guide for more information. 

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