The Basics of Probate

"Probate" is used to describe the legal process by which a deceased person’s affairs are settled and his property distributed to those who are entitled to receive it. This Classroom covers the basic issues involved in probate including the role of a personal representative, the special protections for family members, a review of the intestacy rules, which describe how an estate should be divided when there is no Will and the options to consider when deciding whether "to probate or not to probate." The second section discusses the actual probate process, from filing the probate petition to completing the work as the personal representative.

The Basics of Probate: Immediately After Death



What to Do Immediately After Death

Some matters need to be addressed as soon as a death becomes known.

Minor Children and/or dependent adults

If the deceased was caring for minor children and/or an incapacitated adult, filing for temporary guardianship should be considered in an emergency. For more information on this topic, check out the court system’s website at

Notification of death

Relatives and agencies should be notified the person has died.

The Decedent's body

The decedent may have gifted all or part of his or body in a Will and/or instructions in an advance health care directive (i.e. a living will). Unless the decedent indicated otherwise, close relatives are authorized to transfer all or part of the deceased's body for medical or educational purposes. Probate is not required.

Funeral arrangements

Try to determine whether the deceased left burial instructions and inquire about funeral arrangements, burial insurance, or cemetery contracts. Also, consider whether the deceased could benefit from special funeral benefits available from the Bureau of Indian Affairs (BIA) and the Veterans Administration. If the cause of death was not clearly established, an autopsy may be useful for insurance purposes or for a possible wrongful death action.

Support for Survivors

Consider whether survivors of the deceased need assistance with applications for public benefits, including social security, BIA assistance, VA benefits, and state programs. They may also need help gaining access to certain assets such as joint bank accounts, insurance, and employment death benefits that typically pass outside the probate process.

Determine whether the deceased left a Will

Try to find out if the decedent ever made a Will and, if she did, determine where the original is located. A person holding a Will after death is under a duty to deliver it to the court or to the person attempting to secure probate. Failure to do so makes the custodian susceptible to a lawsuit compelling delivery.

Gaining immediate control of property

For the first 120 hours after death, it is impossible to have a personal representative appointed under normal procedures. If it is necessary to gain control of the decedent's assets immediately, such as to get them out of an apartment to avoid a month's rent, or to get them away from someone who is leaving Alaska, “special administration” is available until a general personal representative is appointed. Informal procedures with minimal notice requirements are used.

Access to a safe deposit box after death is often a matter of the decedent's specific arrangement with the bank. Consult the bank. If you are able to gain access, opening the deposit box and creating an inventory in the presence of a bank employee or other neutral party is suggested. “Special administration” may be necessary to obtain the Will if you think it’s in the box and you cannot gain access to it.

Identify Heirs

Finally, try to develop an extended family tree for the decedent in order to get an idea of who the heirs might be.

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