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How Probate Works: A State Comparison
When a person dies with assets, property, and cash, this “decedent” usually leaves a will that names a number of “beneficiaries” who stand to receive the assets. That will must be confirmed valid, conflicts between beneficiaries resolved, and “death taxes” levied. As the probate process is controlled under state law, the procedures for probate will differ from state to state. California and Ohio probate procedures are quite complex, whereas Texas probate law is simpler. However, 20 states have adopted the Uniform Probate Code.
The first step is deciding whether probate is necessary at all. If the estate does not have much in the way of assets, beneficiaries, or creditors, it may be unnecessary. In California, probate is mandatory if the estate is valued at over $30,000 and included real property, in Texas probate is not required at all, and in Illinois probate is required with assets over $100,000.
The next step is for the executor, the person the decedent had chosen to control probate and subsequently appointed by the court, to present the will at the probate court, petitioning that the will is valid. In certain states, an out-of-state executor must post a bond.
Most states are uniform in what happens next: the executor informs heirs, beneficiaries, and creditors of the opening of the estate in probate. Any unknown heirs must be found, and creditors notified by newspaper advertisement. Then, beneficiaries must contest the will in a certain amount of time.
The estate will open up a bank account out of which to pay beneficiaries. The executor will also prepare the estate to pay taxes, including federal and state estate taxes, state inheritance taxes, individual taxes, estate income taxes, and gift taxes.
Finally, the executor distributes assets to the rightful parties as determined by the probate court. The executor files a final accounting report with the court, sends out copies to beneficiaries for their confirmatory subscriptions, and is discharged from duty.
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