The Probate Proceeding
There is a formal process that must be followed in each state to probate an estate. Contrary to popular belief, if a person dies with a will and the estate exceeds the minimum threshold, probate is still necessary. These are the typical steps in a probate proceeding:
A petition is filed with your probate court to start the probate process.
The probate court issues an order naming an executor.
A notice of death is published in the local newspaper.
Bills and debts must be paid.
Accountings and inventories must be filed with the probate court.
Your property must be valued.
Your property is distributed.
Papers are filed to close the estate, and probate fees are paid.
Who Files the Petition?
If you have a will, it almost always names an executor. However, the person named in the will does not become the executor automatically. This person must petition the probate court seeking appointment as executor. The probate court judge will review your will and the petition to determine if the will has been signed with the proper formalities. It will then determine whether the person seeking appointment as executor is qualified to serve. If so, the judge will enter an order appointing the person as executor. This opens the probate process. It is the order appointing the person as executor that gives her the legal authority to sign documents for you after your death.
If there is no will, or the person named in your will is not available, the probate court will determine who should serve as executor or personal representative to handle your estate. Each state has laws that establish the priority of who should be named as executor in such cases.
Typically, the surviving spouse is given first priority, and then the children. When there is no surviving spouse, it is not uncommon for the surviving children to disagree about who should serve. When this happens, the probate court will schedule a hearing and hear testimony about who is best qualified to serve. That's when things really start getting expensive. Imagine that there are two surviving children, each one expecting to serve as executor. If they can't agree on who will serve, each will file a petition seeking appointment. Both children will need a lawyer, and the estate could be charged with some of the court fees.
Some states allow the judge to review the petition and enter an order without a hearing. Other states require the judge to take testimony from the persons who witnessed your will.
After the Executor Is Appointed
After the executor is appointed, the estate places a notice in your local newspaper providing the name of the person who died, the name of the executor, and an address where the executor can be contacted. Usually the estate posts the address of the lawyer who is representing the estate as the contact. Most state laws require that once the notice is published in the local newspaper, the estate must wait three to six months before distributing the assets. This waiting period gives all of the creditors who have not been paid an opportunity to submit their bills to the estate and also allows anyone who thinks they have an interest in your property an opportunity to file a claim. The probate proceeding for your estate could possibly be closed within six months as long as no one:
Contests the validity of your will
Argues that you were not competent to make a will
Objects to the appointment of the executor
Files a claim against the estate
Disagrees about the valuation of the property
Contests how your property will be distributed
If you think your family might dispute some aspects of your will or trust, consider making a video of yourself in which you explain what you want and why. Such a tool would be invaluable to your executor if family members threaten to sue.