Probate Process: FAQ

Where do I file probate?

Probate is usually started in the county where the decedent was a primary resident. If the decedent owned real property where they were not a resident, they would likely have to open probate in both states, starting where they were a primary resident.

The probate process and the decedent’s assets are handled at the state level. Each state has different procedures, and each county or district usually has its own probate process. The county where the decedent was a primary residence is the court with jurisdiction over the estate.

Due to probate being handled at the state level, if a decedent has assets in multiple states, the situation may require multiple probate cases to be opened. 

Certain assets, such as bank accounts or insurance policies, are not tied to a physical location and can be processed through probate in any state. Assets physically tied to a state, such as real estate or vehicles registered to a state, require probate to be done in the state they are tied to. 

When probate needs to be filed in more than one state, the secondary cases are considered Ancillary Probate Cases. Probate is usually started in the state where the decedent was a primary residence. Once a Personal Representative has been appointed in the primary state, they can petition to open ancillary probate in additional states. Ancillary probate can be opened in as many states as necessary to address all assets.

What happens if no probate is filed?

There is no legal requirement to file probate. However, if no probate is filed for the estate, the heirs will likely not be able to legally transfer any assets that exist in the decedent’s name. 

What are the stages of full probate?

Full probate consists of three main stages:

1. Petition Stage

The Petition Stage is the initial stage of probate where the primary actions taken include completing and filing the initial petition to open probate, giving notice to all interested parties and creditors, posting bond, validating the will, and filing any supporting documents with the court to receive letters of authority.  Typically the petition is filed by whoever is seeking to be appointed Personal Representative of the estate (usually named in the will or an heir with priority).

Assuming all is in order with the filing, the court may hold a hearing to issue the Letters of Authority. These letters will allow the appointed personal representative to act on behalf of the estate.

The goal for this stage is the Appointment of the Personal Representative.

2. Administration Stage

The administration stage is the second stage of probate and starts once a personal representative has been appointed.

During this stage, the personal representative must fulfill their administrative duties.  These vary from state to state but generally consist of filing a formal inventory of the assets, paying any taxes or debts, responding to creditor claims, and protecting the estate's assets. 

Creditors are given a timeframe of when their claims must be filed, known as the creditor claim period (varies by state but can be 3-12 months).  The personal representative must wait for this period to end before proceeding to the next stage. 

The goal for this stage is to complete administrative duties and manage the estate.

3. Closing Stage

The closing stage is the last stage of probate. It can be started once the creditor claim period has ended and the personal representative has completed their administrative duties.

During this stage, the personal representative distributes the assets to the rightful heirs and distributees. Some states require court approval before distributing the assets and may hold a hearing to see if there are any objections. 

Once the assets have been distributed, the personal representative reports to the court, the estate is closed, and the personal representative is discharged from any liability. 

The goal for this stage is to distribute assets and close the estate.

Do I have to go to court during the Probate process?

Most Probate courts will schedule a hearing that allows anyone to challenge the petition (statement of facts) or the Will. Most courts offer a phone service so you can call in instead of showing up in person.

Most states also allow for the hearing to be waived as long as all participants (heirs) agree to waive the hearing. 

What happens if an Estate has debt?

Debts within a deceased person's Estate are very common, but the debts will need to be paid or handled before assets are distributed. 

Only valid debts will be considered, and debtors are required to make a claim against the Estate. However, the Executor/Administrator of the Estate is obligated to notify all known debtors. Valid claims have a statute of limitation (a period during which they must be brought to the Estate) which is typically three to seven months after the Estate is opened and public notice is provided. The priority of payments in an Estate is as follows:

  1. Admin expenses (court fees, legal fees, management of the Estate.)
  2. Funeral expenses.
  3. Taxes (federal, state, local, income, inheritance.)
  4. Creditors
  5. Heirs

What is Ancillary Probate and how is it filed?

Ancillary probate is an additional process that may be necessary if the decedent owned property in another state.  

Ancillary probate is a special type of probate proceeding in addition to the primary probate proceeding. It often becomes required because the probate court in the home state does not have any legal jurisdiction over property owned by the decedent out-of-state.

Probate is usually started in the state where the decedent was a primary residence. Once a Personal Representative has been appointed in the primary state (this is the domiciliary probate) if the Personal Representative discovers that the decedent owned property in other states, they must also file for probate in the state(s) in which the property is located (this is the ancillary probate).

Certain assets, such as bank accounts or insurance policies, are not tied to a physical location and can be processed through probate in any state. 

Assets physically tied to a state, such as real estate or vehicles registered to a state, require probate to be done in the state they are tied to. When probate needs to be filed in more than one state, the secondary cases are considered Ancillary Probate Cases. 

Probate is usually started in the state where the decedent was a primary residence. Once a Personal Representative has been appointed in the primary state (the domiciliary probate), they can petition to open ancillary probate in any additional states. Ancillary probate can be opened in as many states as necessary to address all assets. 

In ancillary probate, often the Letters of Authority and court order appointing the personal representative (and admitting the will to probate if applicable) are submitted along with the petition for ancillary probate, showing that the petitioner already has authority in another state.  

In testate cases, the original will is on file with the court where probate was initially opened.  By providing a court-certified copy of the will and the court order admitting the will to probate, the state where ancillary probate is being filed honors the decision of the primary probate and admits the will without needing to re-prove it. 

How do I get into the phone, email, and/or digital world of the decedent?

A decedent’s digital legacy can be an important part of the probate process.  

Who can access the accounts and how they can access the accounts often varies by the platform. We recommend reaching out to support for whichever account you are trying to access and seeing what their company policy is.  Some companies may require letters of administration, and others may need a direct court order. 

What if I need access to a Safety Deposit Box?

This is very common! You're able to petition the court specifically to open the safety deposit box and see the contents before full Probate proceedings start.

How do I apply for a tax ID number (EIN) during probate?

Just follow the steps below to apply for a tax ID number:

  1. Go to: Apply for an Employer Identification Number (EIN) Online and click on the apply online now button
  2. Click the "Begin Application" button.
  3. Select "Estate."
  4. Confirm that you want to create a tax ID for an Estate.
  5. Enter information about the deceased. Make sure to enter the correct social security number and legal name since the IRS will match with its database.
  6. Select the type of Executor or Administrator. If you are an individual person, select "Individual" (most common.) If you are an Entity (business that helps with Estate process, like a bank or trust company) select entity.
  7. Enter the official court representative information. You will need to designate whether you are an Administrator (no will), Executor (valid will), or Personal Representative (special circumstance, ex: no valid executor can serve.) Select whether or not you're applying yourself as a Court Appointed Representative. Only select "Third Party" if you're a third party applying to be an Executor or Administrator.
  8. Enter the Executor or Administrator address, this will serve as estate mailing address
  9. Note that estate has been added to the name of deceased. Verify the pre-filled information (county, state) and enter when the probate was funded (enter date of court appointment). Choose your month end accounting (month that will mark your taxable reporting period). You can choose to enter any month here, it is recommended you choose either calendar year end or the month of death. Most choose calendar year as all tax reporting from financial institutions will be the calendar year end.
  10. Select "No"
  11. Select "Receive letter online." Confirm your information and you will get a PDF with the Tax ID. This will instantly provide you with the IRS letter with the Tax ID for the estate. Make sure you print and save the PDF.
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