How to probate a will: A step-by-step guide

There’s so much to take care of when a loved one passes away. In addition to coping with difficult emotions, there are also many important administrative tasks you have to handle, like reaching out to family members, making funeral arrangements, and settling your loved one’s estate. This includes transferring property and other assets to their heirs. If your loved one had a last will and testament, this makes the process of settling their estate simpler.

A last will and testament, or will, is a legal document that lets a person decide what should happen to their estate after they die. In their will, they can also nominate an executor. If you’ve been named executor in your loved one’s will, this means they’ve chosen you to oversee their estate and carry out their final wishes.

But settling their affairs isn’t as simple as reading their will and following its instructions. Their estate must often go through probate, which is the court-supervised legal process of settling an estate. This includes taking an inventory of your loved one’s assets, paying their outstanding debts, and distributing their assets according to their will.

How to probate a will

If you’ve been named the executor in someone’s will, you may be wondering what your responsibilities are, or how to start the probate process. Although the process can vary by state, we’ve broken down the key steps for probating a will below:

1. Present the death certificate to the court

To get the probate process started, file a copy of the death certificate with the probate court. You can be the one to do this if you’re the will executor, or it can be done by someone else close to the departed — like a family member or estate attorney.

2. File the testator’s will

“Testator” is the legal term for someone who wrote a will — in this case, the person who passed away. If the deceased had a will, you’re required to file it with the court. The filing deadline varies by state, but it’s usually within 30 days to three months after the testator’s death.

3. Validate the will

The court will examine the will and make sure it’s legally valid. They’ll check for the document’s date, the testator’s signature, and the signatures of their witnesses. They may also call the witnesses to court to confirm the document’s validity.

4. The probate court appoints a representative to oversee the estate

When the court accepts the will, they’ll name a representative to carry out the testator’s wishes in the will. If you were nominated as the will executor, you’ll likely be selected, unless you decline or the will is contested (meaning that someone challenges its validity).

5. Identify assets and debts

Once you’re appointed as executor, you’ll need to create an inventory of all the testator’s property and belongings, and determine the value of each. This includes property like real estate, vehicles, and furniture. It also includes financial assets, like bank and investment accounts, and digital assets like cryptocurrency. Certain property — like valuable artwork and real estate — may require a professional appraisal to determine the value.

You’ll also need to identify any outstanding debts, such as a home mortgage, car loan, or medical expenses.

6. Reach out to beneficiaries and creditors

While you’re compiling a list of all assets and debts, you’ll also reach out to the testator’s beneficiaries (their heirs) and creditors (anyone they owe money to). A beneficiary is someone who will receive something from the testator’s estate. For example, let’s say the testator left 25% of their estate to their favorite charity in their will. You’ll be responsible for contacting the charity and letting them know about the gift.

7. Pay debts

For assets going through probate, creditors must be paid for outstanding debts before beneficiaries can receive assets from the estate. This may include funeral expenses, outstanding medical bills, taxes, and other debts. For large debts — for example, the mortgage on a house — the beneficiary may choose to take on the remaining payments when they inherit the property.

8. Distribute assets to beneficiaries

Once debts are paid, you’ll distribute the rest of the estate to beneficiaries according to the testator’s will. Estate assets may include:

• Real estate property, including houses
• Vehicles, including cars, campers, and boats
• Bank and brokerage accounts
• Pets
• Family heirlooms and personal items, including clothes, books, and furniture
• Digital assets, like cryptocurrencies

What happens if someone dies without a will?

If someone dies without a will (known as dying intestate), the process for administering their estate is slightly different.

You’ll still start by filing the death certificate with the court. The court will then assign a representative — or “administrator” — to handle the estate (since the deceased didn’t choose one themselves). Once this is done, the administrator will distribute assets according to state intestacy laws. Intestacy laws determine the order in which heirs receive property if someone didn’t have a will. Generally, this will first be their spouse or children, followed by parents, siblings, and extended family.

Dying intestate often makes the administration of an estate more time-consuming and expensive. This is why creating a will (and keeping it up to date) is so important.

How long does probate take?

According to the American Bar Association, it takes around six to nine months to probate an estate in the United States. But probate laws vary from state to state, so the length of time it takes to complete the process can vary as well. In states like California, for instance, the process is often longer and could take years.

The time it takes to probate an estate depends on several things, like:

• Which state the deceased lived in
• The size of the estate
• Whether the deceased had a will
• If the will is contested in court

Contesting a will is uncommon, but it does happen — and when it does, it can delay probate proceedings. Sometimes, beneficiaries challenge a will because they disagree with who receives certain assets. Other times, the legality of the will is questioned — for example, if it wasn’t properly witnessed, or was potentially written under pressure from someone else.

Make probate easier by creating a will

Probating a will takes time and effort, but it’s a necessary part of settling your loved one’s affairs — and it’s much easier than managing an estate without a will.

You can make things easier for your own loved ones by making sure you have a valid will. By planning ahead, you can make sure your wishes are clear and help ensure the probate process runs smoothly after you’re gone.

Creating a will is simpler than ever with online resources like FreeWill. With our free will-making tool, you can make your will in as little as 20 minutes — that’s less time than it takes to run the dishwasher or listen to your favorite album! Give yourself and your loved ones peace of mind by making your free will today.