The Basics of Probate: What You Need to Know


If you’ve recently lost a loved one, the last thing you want to think about is whether their will was up-to-date and their estate was planned properly before they passed away. However, if you’re the executor of the will and personal representative of the estate, that’s exactly what you need to be thinking about at this time. Before you can begin settling the estate, though, you need to learn more about what probate is and how it works so that you can get your loved one’s affairs in order with confidence.

Wills and Heirs

If you are married, or in a long-term committed relationship, it’s imperative that you set up a will. This is because if you die without one, your spouse and/or any children will be subject to what’s called intestacy. In short, intestacy would mean that each party would receive an inheritance based on state law. To avoid such confusion in your family dynamic, take time now to discuss wills with your partner and/or any children.

What is probate?

The legal process by which a deceased person’s assets are administrated. In a probate estate, an executor (or administrator) is appointed by a court to supervise the distribution of assets. If no will exists, state law determines how assets will be distributed.

Estate Taxes

Some states have no estate tax. If your state is one of them, you’re lucky. In most cases, there are ways around it if you’re looking at a hefty bill. Even if there’s no estate tax, however, you may need to pay income taxes on money left behind by a loved one.

Debts and Creditors

When someone dies, their outstanding debts are written off unless there is money in their estate. Any creditors who were owed money must be paid before any beneficiaries can receive distributions from an estate. It’s important for those involved in administering a probate proceeding to understand how debts and creditors are handled during a probate process. This can help make sure funds are distributed correctly.

Executors vs. Guardians

These terms may seem interchangeable but there are key differences. If your loved one passes away and names you in their will, it doesn’t mean you are both executor and guardian. The executor is responsible for making sure all legal matters related to death are resolved, including collecting on a will or other estate planning documents.


Do You Need a Lawyer?

Unfortunately, whether you need a lawyer for your probate case will depend on your specific circumstances. If you’re just a simple executor or personal representative with minimal assets and no disputes, many lawyers recommend that you can handle it on your own.