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Crystal Ignatowski By Crystal Ignatowski • October 4, 2016

The Probate Process & How Probate Works

probate process

 

What is probate? Probate is the legal process that governs how a deceased person’s assets are distributed upon their death. One way to think about the probate process is that it acts as ‘the script’ for how things go after someone passes away.

 

How Does the Probate Process Work?

 

The probate process will depend on whether your state has adopted the Uniform Probate Code (UPC). The UPC is an act drafted by the National Conference of Commissioners on Uniform State Laws. The act’s primary purpose is to streamline and standardize the probate process.

 

Here is a copy of the most recent Uniform Probate Code.

 

What States Have Adopted UPC?

 

16 states have adopted the UPC in its entirety. These states are:

  • Alaska
  • Arizona
  • Colorado
  • Florida
  • Hawaii
  • Idaho
  • Maine
  • Michigan
  • Minnesota
  • Montana
  • Nebraska
  • New Mexico
  • North Dakota
  • South Carolina
  • Utah

The remaining states have not adopted the UPC. Some states adopted parts of the UPC, which can be seen in this chart.

 

The image below shows non-UPC states (green) and UPC states (red).

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The Probate Process for UPC States

 

There are 3 kinds of probate in UPC states.

  • Informal Probate
  • Unsupervised Formal Probate
  • Supervised Formal Probate

 

Informal Probate

This probate process is used when inheritors are getting along and there are no problems (or expected problems) with creditors. This probate process requires no court hearings; it is just paperwork. Informal probate cannot be used if someone wants to contest the proceeding.

Here are the steps involved with Informal Probate:

  • File an application with the probate court to serve as personal representative. (It is important 'personal representative' is used and not 'executor' or 'administrator.')
  • Once approved, you will receive a ‘letter of testamentary’ or ‘letter of administration’ which grants you official authority to act on behalf of the estate
  • Send our formal written notices to heirs, beneficiaries, and creditors
  • Publish a notice in the local paper
  • Provide proof that you have done the above (sent notices and published notice)
  • Prepare an inventory and appraisal of deceased person’s assets
  • Distribute the property properly
  • Close the estate

 

Unsupervised Formal Probate

This probate process is similar to Informal Probate, but is used when there is a reason to involve the court. This probate process is used when there is no valid will at the time of death (also known as intestate succession.)

Steps involved with Unsupervised Formal Probate:

  • Schedule a hearing with the court
  • Send written notice to all interested parties before your court hearing
  • Publish notice of the proceeding in local paper
  • Continue the probate process at the court hearing

 

Supervised Formal Probate

This is the rarest form of probate. This probate process is used when a court feels that it must supervise the probate process. This process follows the same general process as Unsupervised Formal Probate, but the judge might require more of you.

 

The Probate Process for Non-UPC States

 

No one state will have the same non-UPC probate process. This is just an outline, but many states follow this closely.

  • Start the probate process by asking the court to make you executor (if there is a will) or administrator (if there is no will)
  • Upon approval, file a petition or application for probate in the county the deceased person was living in at the time of death
  • Publish a notice of probate in the local paper
  • Mail the notice to beneficiaries and heirs
  • Provide proof that you have done the above (sent notices and published notice)
  • Post a Probate Bond (court bond) if required - Learn more about Court Bonds in our Court Bond Guide
  • Submit a self-proving affidavit
  • File other documents required by the court
  • Administer the estate
  • Close the estate

 

For more information about serving as an executor or personal representative, check out our extensive blog post library relating to court proceedings. 

 

 

Related Links:

How the Probate Process Works

State by State Probate Laws

UPC Adoption by the States

Death Without a Will: Now What?