How the Probate Process Works

Probate is the process of collecting the deceased’s property and distributing it in accordance with the terms of his or her will. The process is supervised by a local probate court and follows a process regulated by state law or the Uniform Probate Code (UPC). If your state has adopted the UPC, the probate process is more streamlined, especially for small estates. California has not adopted the UPC and instead follows the California Probate Code.

The executor of the will is the person (or institution) in charge of guiding the will through the probate process and ultimately of distributing the will property to heirs and beneficiaries.

Generally, an executor must do the following:

  • Ask the court to officially recognize him or her as the executor of the will.
  • File a request for probate, death certificate and original will in the county the deceased was living at the time of death.
  • Publish a notice of the probate in a local newspaper. Mail the notice to known creditors and heirs and beneficiaries.
  • If required, post a bond that protects the estate from any losses the executor may have caused the estate through mismanagement of the probate process.
  • Offer proof of the will’s validity through testimony or affidavits from witnesses to the signing of the will.
  • Get an employer identification number (EIN) for the estate from the IRS.
  • Open an estate bank account
  • File an inventory and appraisal of estate assets.
  • File federal and state tax returns (if required) for the estate.
  • Mail notice of the final hearing date to heirs and beneficiaries.
  • Obtain court’s permission to distribute property.
  • Transfer assets and get receipts.
  • File receipts with court and obtain a release of executor duties from the court.

Understandably, most executors may be overwhelmed by the many procedures involved during the probate process. Moreover, probate often takes 8 months to a year, often longer if the estate is larger or more complicated. Many executors are not able to devote the time needed and do not have the expertise to comply with the many regulations and deadlines during the entire process. Thus finding a trusted legal adviser to oversee probate proceedings is often the most essential aspect of being the executor of a will. The following post will discuss factors to consider when deciding whether to hire a probate lawyer.