When a person dies and leaves a savings account, home, and other property titled in his/her name, it usually requires a court order to change the title of property. So, even if you do have a will, your family will have to request probate through the courts to get a court order to change title.

It is against the law to remove any property from the decedent’s home until the probate proceedings are complete. If you risk removing anything from the decedent’s home, you could face serious charges. Don’t do it or let anyone else do it.

Once one of the family members or executor requests probate, a formal written petition must be filed. This is usually prepared by an attorney.

The next step the executor takes is to advertise a formal notice of your death in the newspapers. This is usually ordered by the court and paid for through your estate. This is done to notify any creditors or anyone else making a claim against your estate. During this time, usually several weeks, your executor notifies all of your heirs of your death and time, date, and place of the probate proceeding.

Approximately two months have passed since the first petition was filed. If there are no unusual circumstances, the next step is usually the first hearing.

The first hearing

At this hearing, the judge will make sure there are no other conflicting wills, validate your will, and make sure your will meets all the legal requirements. If it does not, the judge may declare that you died intestate (without a will) and apply the states rules for a will. The judge will formally appoint an executor (the person you chose if you had a will), administrator or manager to perform these duties.

Some of the executor’s responsibilities include collecting all bills, helping the court inventory all property, preparing a final tax return, and submitting all bills to the court to be approved and paid. The executor will also contact organizations such as unions and other groups for any death benefit that may be due. The banks require a written document from the court in order to release funds or close any accounts. This legal document is called a “letter of testamentary” or “letter of administration.” It gives the executor the right to your assets and to keep them safe until the probate hearing is complete.

In many states, the executors are not allowed to act independently and must get approval from the court for all actions. More recently, some states have adopted a policy of unsupervised independent administration. This is where the executor’s actions are not closely audited by the court. The probate process is still very slow and requires a lot of paper work. There may be different requirements in each state which allows independent administration.

If there are any unusual circumstances such as a contested will, or unknown or contesting heirs, the court will try to resolve them at this hearing. In the event they are not resolved, there may be other hearings; this can get quite expensive. At the end of the first hearing an attorney is usually appointed to handle the estate’s paper work. This paper work can get quite complicated and is best done by an attorney who is familiar with the probate system. The attorney fees get paid through the estate.

All your assets are frozen during probate until an accurate inventory is taken. This means that no property can be sold unless the court gives its’ permission. Your executor must now compile an inventory of all your assets. This can be very time-consuming, especially if there are assets such as real estate in other states. The executor must prove the value of some of the assets via appraisals by court-approved appraisers. This too can get very expensive.

Your attorney can submit a request for a living allowance for your spouse, minor children or grand-parents. In most cases, if it is reasonable and there are no special circumstances pending, the judge may allow it.

After the newspaper notice of your death, your creditors have a certain number of days to submit a claim for payment. Your executor will compile a list of claims and any taxes that are due, and submit them to the court for approval. Once the judge has approved them, they can be paid through your estate’s assets. If there are any disputes the judge will have the final decision.

By now, a year or more has passed and your estate is getting closer to the final distribution and the closing of the estate. The judge will order another notice in a different publication, advertising the final hearing of your estate. He will review all claims, taxes, and probate expenses including attorney fees, executor fees, appraisals and other costs. In some states this step may not be necessary.

Once the judge is satisfied that all the paper work is in order, he will authorize that final distributions be paid. If there is not enough money in the estate, the judge will now require some of the assets to be sold at auction. Your assets are usually sold at less than they are worth, especially during a depressed market. Often, with many assets such as stocks, bonds, and real estate, if you can’t sell them at the right time or act quickly, you stand to lose a considerable amount of money.