Embarking on the final act of kindness (and subsequent tangled web of responsibilities) for the deceased known as probate?
If the person died intestate and without appointing an executor, you’ll need to talk through who would like to take on the responsibility of settling an estate.
If you were appointed in the will, then here’s what you need to do next.
Step 1 - Find the Will
If you know or believe that the deceased had a will, then the first thing you need to do before petitioning the court to begin probate is to find the will.
It’s obvious, but this can take a while.
Here’s how to do that: How to Find Out if Someone Had a Will
Step 2 – File the Will
After you find it, you need to file it in the probate court of the town where the deceased permanently resided, or was domiciled, technically. Unless they had an unusual lifestyle that involved bouncing frequently between residencies, their domicile and local probate court are likely exactly where you would imagine them to be (in the city they spent their lives in).
You have to file a will (if it exists), regardless of your plans surrounding probate. Even if you think you can avoid probate with a small estate affidavit or something similar, if a will exists, it must be filed with the court.
If the city doesn’t have a specific probate court, they can also be called superior courts and many other names. You can easily find the right place to go in this probate court directory.
After you find the probate court, you will send the will in whatever method they prefer. Usually at the same time, you also fill out a form requesting that probate be initiated.
Be careful, though. There are different levels of probate, with different levels of cost and court involvement, but once you start a level, you cannot drop down to a lower level. In terms of cost, time, and paperwork, it is ideal to choose the lowest level of probate possible.
For more on probate levels, read: Beginner’s Guide to Probate.
So in short, try to get an idea of what probate level you need before starting all of this.
Step 3 – Decide on an Executor (if not already settled)
Someone has to act as the executor or personal representative of an estate, but they always have the right to decline the position. You can decline the responsibility by filling out a form in most states.
Executors are usually appointed in the will, and if not in the will, someone from the family usually steps up.
Keep in mind, rules change by state. Sometimes you need to work with a probate lawyer. Other times you have to live in the state.
Regardless of who steps up and why, the probate court will have to formally approve them. Usually in a hearing after the petition is filed.
Speaking of which, after you know who wants to accept the position, they need to fill out a petition for probate form.
Step 4 – Locate the correct petition for probate form
If they don’t give you the form at the probate court when you drop by with the will, look online or ask for the petition for probate form. Then you will need to fill it out, sign it, and get it notarized. Getting a document is fairly easy and cheap, and you can just google “notary near me” to find someone for a few bucks.
Step 5 – Submit the form along with any fees
Court fees change state by state, county by county, and district by district, but take some cash and the notarized petition for probate form to the court for next steps. Then they will usually stamp it and tell you if you’re all set. Some states also require you to file probate bond, which is a financial service that offers coverage to the estate in case an executor makes any poor financial decisions or acts in bad faith.
Step 6 — Attend the court hearing if needed
After you file, the probate court may kick things off with an official hearing, where they officially appoint the executor and give them their letters testamentary or letters of administration, which give them the authority to act on the estate’s behalf (e.g. open and close accounts, move stocks around, sell houses, etc.)
Every Tool Executor’s Need
You may have noticed, but there’s a lot of conflicting information out there concerning about probate and estate settlement.
And that’s not always due to error, since there are 50 states in the U.S. and 10 provinces in Canada (not to mention its' Territories)— each with their own sets of laws and regulations.
So to save you some time, here are the tools and guides our community finds most helpful: