What Is Probate?

Probate is the court supervised process of proving a will valid, appointing a personal representative, gathering and valuing assets, paying debts and taxes, and distributing what remains to the beneficiaries or heirs. Probate paralegals are among the busiest professionals in an estate practice, drafting petitions, preparing inventories, tracking deadlines, and communicating with beneficiaries. Certification exams test the vocabulary and the sequence of the process, so a firm grasp of each stage is valuable.

Key Terms

Decedent: the person who has died.
Testate: dying with a valid will. Intestate: dying without one.
Executor (or personal representative): the person named in the will to administer the estate. When there is no will, a court appoints an administrator.
Letters testamentary or letters of administration: the court document that proves the representative's authority.
Probate estate: the assets that pass under the will or intestacy law.

Step 1: Locate the Will and Gather Information

The process begins by locating the original will, which courts generally require. Gather a certified death certificate, a list of heirs and beneficiaries, and a preliminary list of assets and debts. If the original will is lost, there is a presumption that the decedent revoked it, and proving a lost will is an extra step.

Step 2: File the Petition

The petition to open probate is filed in the proper court, usually in the county where the decedent was domiciled. It requests admission of the will to probate and appointment of the personal representative. Real property in another state may require a separate ancillary proceeding in that state.

What Is the Difference Between Formal and Informal Probate?

Under the Uniform Probate Code, informal probate is a streamlined, largely administrative process without a hearing, suitable for uncontested estates. Formal probate involves court hearings and a judicial determination, and is used when validity is contested or when a binding adjudication is needed.

Step 3: Notice to Heirs, Beneficiaries, and Creditors

Interested persons must receive notice of the proceeding and of their right to object. The personal representative also publishes notice to creditors and mails notice to known creditors. This starts the claims period, often three to six months, after which untimely claims are generally barred.

Step 4: Appointment and Authority

Once the court admits the will and approves the executor, it issues letters. The personal representative may be required to post a bond unless the will waives it. With letters, the representative can open an estate bank account, obtain an employer identification number (EIN) for the estate, and access assets.

Step 5: Inventory and Appraisal

The personal representative must identify, collect, and protect the probate assets, then file an inventory with the court within a set time, commonly 60 to 90 days. Real property and valuable personal items often require appraisal at date of death value, which also sets the stepped up tax basis for beneficiaries.

Which Assets Avoid Probate?

Non-probate assets pass outside the will by operation of law or contract. Examples include:

Jointly held property with right of survivorship.
Life insurance and retirement accounts with named beneficiaries.
Payable on death and transfer on death accounts.
Assets held in a living trust.

Beneficiary designations override contrary language in a will, a point examiners like to test.

Step 6: Pay Debts, Taxes, and Expenses

The representative reviews creditor claims, allows or disputes them, and pays valid claims in the order of priority set by statute. Typically administration expenses and funeral costs come first, followed by taxes and certain debts. The estate must file the decedent's final income tax return and, if applicable, an estate income tax return (Form 1041). A federal estate tax return (Form 706) is required only for estates over the exemption amount, and some states impose separate estate or inheritance taxes.

Can the Executor Be Personally Liable?

Yes. A personal representative is a fiduciary who owes duties of loyalty, prudence, and impartiality. Paying beneficiaries before debts and taxes, self-dealing, or mismanaging assets can create personal liability.

Step 7: Distribute the Estate

After the claims period closes and debts and taxes are paid, the representative distributes the remaining assets under the will. Several concepts affect distribution:

Abatement: When assets are insufficient, gifts are reduced in a statutory order, generally residuary gifts first, then general, then specific.
Ademption: A specific gift fails if the item is no longer in the estate at death.
Lapse and anti-lapse: If a beneficiary dies before the testator, the gift may lapse unless an anti-lapse statute substitutes the beneficiary's descendants.
Intestate succession: Without a will, property passes to the spouse and descendants, then to other relatives according to state law.

Step 8: Accounting and Closing

The personal representative prepares an accounting showing receipts, disbursements, and remaining assets. Beneficiaries may waive formal accounting in many cases. Once distributions are made and receipts are collected, the representative files a petition to close the estate and obtains an order of discharge.

How Long Does Probate Take?

A simple uncontested estate may close in six to twelve months. Contested wills, tax issues, or complex assets can extend the process for years. Many states offer small estate affidavits or summary procedures for modest estates, which avoid full probate.

Paralegal Responsibilities

Preparing petitions, notices, and proposed orders.
Collecting asset information and date of death valuations.
Drafting inventories, accountings, and tax filings with the accountant.
Calendaring statutory deadlines and court hearings.
Communicating with beneficiaries without giving legal advice.

Study Resources

The order of events is the key to probate questions on the exam. Build memory with the paralegal flashcards on wills and estates, create your free account at ParalegalPrep signup, and see the available study plans on our pricing page.

Probate Administration: A Step-by-Step Guide for Paralegals