By Mary Randolph , J.D. UC Berkeley School of Law
Updated by Jeff Burtka , Attorney George Mason University Law School
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Probate is the court-supervised process of gathering a deceased person's assets and distributing them to creditors and inheritors. During the probate process, your role as an executor is to manage the deceased person's estate (that is, the money and property they left behind). An executor needs to understand how the probate process works. This article gives general outlines of the two most common probate processes, but state laws vary. So, you always should check the specific laws in the state where you are serving as executor.
What the probate process will look like for you depends on whether your state has adopted the Uniform Probate Code (UPC). The UPC is a set of model laws written by a group of national experts to make the probate court process simpler, especially for small estates.
Only some states have adopted the entire UPC, and others have adopted only portions of it. As a result, the probate process can vary widely from state to state.
Check the list of states below to find out whether or not your state has adopted the entire UPC. If it has adopted the UPC, skip to the section titled "The Probate Process in UPC States," below.
If your state has not adopted the UPC, reading the section titled "The Probate Process in Non-UPC States" will give an outline of the likely probate process in your state. But remember that some states have partially adopted the UPC, so it's possible some of the procedures discussed in "The Probate Process in UPC States" could apply in your state.
States That Have Not Adopted the UPC
Alabama
Arkansas
California
Connecticut
Delaware
District of Columbia
Florida
Georgia
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maryland
Massachusetts
Mississippi
Missouri
Nevada
New Hampshire
New York
North Carolina
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
Tennessee
Texas *
Vermont
Virginia
Washington
West Virginia
Wisconsin *
Wyoming
* Has an informal probate proceeding similar to that used in UPC states.
States That Have Adopted the UPC
Alaska
Arizona
Colorado
Hawaii
Idaho
Maine
Michigan
Minnesota
Montana
Nebraska
New Jersey
New Mexico
North Dakota
South Carolina
South Dakota
Utah
Every probate court has its own detailed rules about the documents it requires, what they must contain, and when they must be filed. Bearing in mind that no estate is perfectly typical, here's an outline of the typical probate process in states that don't use the entire UPC. (Don't forget to check your state laws because almost all states have enacted bits of the UPC.)
You begin the probate process by asking the court to officially make you executor. (To learn more about whether to serve as executor, see Should You Accept the Job of Executor to Settle an Estate?) If you end up acting as executor, you'll need to:
As executor, you're in charge of keeping estate property safe during the probate process. You will prepare a list of the deceased person's assets and, if necessary, get assets appraised. You'll need to:
When the creditor's claim period has passed, you've paid debts and filed all necessary tax returns, and any disputes have been settled, you're ready to distribute all remaining property to the beneficiaries. You'll need to:
Although the law is very similar in the states that have adopted the entire UPC for probate, it isn't identical. You'll need to learn your own state's (and sometimes your own county's) particular rules. Under the UPC, there are three kinds of probate: informal, unsupervised formal, and supervised formal. Here is an overview of each.
Most probates in UPC states are informal. This relatively simple process is used when inheritors are getting along and you don't expect problems with creditors. If anyone wants to contest the proceeding, you can't use informal probate. The whole process boils down to executor paperwork—there are no court hearings.
The first step is to file an application with the probate court to begin an informal probate and serve as the "personal representative" (the term UPC states use instead of "executor" or "administrator"). Once your application is approved, you'll have official authority—often in the form of a document called "letters testamentary" or "letters"—to act on behalf of the estate. You'll need to do the following:
After you have distributed the property, you can close the estate informally by preparing and filing a "final accounting" with the court. Finally, you'll file a "closing statement," stating that you have paid all debts and taxes, distributed the property, and submitted the final accounting.
Unsupervised formal probate in UPC states is a traditional court proceeding, much like the regular probate described above. It is generally used when there is a good reason to involve the court more closely—for example, if there's a disagreement over the distribution of the estate's assets, the heirs need to be determined (if there is no valid will), or minors are inheriting significant property.
You might need to get the court's permission before you sell the deceased person's real estate, distribute property to beneficiaries, or pay a lawyer—or yourself—for work done on behalf of the estate. To close the estate, file an accounting that shows how you handled the estate's assets.
Supervised formal probate is the rarest form of probate. It's used only if the court finds it necessary to supervise the probate procedure—for example, because beneficiaries can't adequately look after their own interests and need the court's protection. As you might expect, you must get court approval before distributing any property in this case.
For more information about serving as an executor or personal administrator, see The Executor's Guide: Settling A Loved One's Estate or Trust, by Mary Randolph (Nolo).
Many executors also work closely with probate lawyers. Lawyer's fees can be paid from the estate itself. If your estate is complicated, if you anticipate conflict, or if you simply would prefer to put some or all tasks in the hands of a professional, find an experienced probate lawyer to help.