Someone has died. What happens first?
Before anything legal, three practical steps: secure the property and any pets, locate the original will and the deed to any real estate, and order several certified copies of the death certificate. You will need more of them than you expect.
Then the legal question is which court has authority. That is usually the county where the person lived, but if they owned real estate in another state, a second proceeding there may be required. This is why we ask about out-of-state property in the first conversation.
Do you even need probate?
Sometimes not, and we will tell you so rather than open a file. Assets that pass outside probate include:
- Anything held in a properly funded revocable living trust
- Retirement accounts and life insurance with a living named beneficiary
- Accounts titled payable-on-death or transfer-on-death
- Real estate and accounts held jointly with a right of survivorship
Every state we practise in also has a simplified route for small estates, with a different threshold and a different name in each one. If the estate qualifies, that route is dramatically cheaper and faster, and it is the first thing we check.
What full probate involves
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Opening the estate
Filing the will and petition, and getting the personal representative or executor formally appointed so they have legal authority to act.
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Notice and inventory
Notifying beneficiaries and known creditors, publishing notice where required, and filing an inventory of estate assets with values as of the date of death.
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Claims, debts and taxes
Reviewing creditor claims and rejecting the invalid ones, a step families frequently skip, and an expensive mistake. Filing the final personal income tax return and any estate return that is required.
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Accounting and distribution
Accounting to the court and the beneficiaries, distributing what remains, and closing the estate so the personal representative is discharged from liability.
How long does probate take, and what does it cost?
An uncontested estate with clean paperwork and cooperative beneficiaries commonly runs six to twelve months, largely because every state requires a waiting period for creditors to come forward. Estates slow down for identifiable reasons: real estate that has to be sold, a missing or ambiguous will, a beneficiary who cannot be located, a business interest that must be valued, or a family dispute.
We quote probate as a flat fee wherever the scope allows it, and we tell you at the outset which parts of the estate are likely to be paid from estate funds rather than out of your own pocket.
If you are the executor or personal representative
You are a fiduciary. You are personally answerable for handling the estate properly, and good intentions are not a defence. The three mistakes that create real personal exposure are distributing to beneficiaries before creditors and taxes are resolved, mixing estate money with your own, and failing to keep records that would satisfy a court. You do not have to serve alone, and you do not have to serve at all if you would rather decline.
Related services
If you are reading this after a difficult experience, a plan of your own can spare your family the same process, see estate planning. If the estate involves a death caused by someone else’s negligence, a wrongful death claim may run alongside the probate; see personal injury.