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How to Start Probate: A Step-by-Step Guide for Executors

Stepping into the role of an executor can be overwhelming. Learn exactly how to start probate with this comprehensive, step-by-step guide. We cover the pre-probate checklist, finding the will, filing the probate petition, obtaining Letters Testamentary, and securing an estate EIN.

June 22, 2026EverSettled Content Team
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How to Start Probate: A Step-by-Step Guide for Executors

When a loved one passes away, the grief of loss is often quickly followed by a daunting administrative burden. If you have been named the executor of an estate, you are likely wondering exactly how to start probate. The answer begins long before you step foot in a courtroom. In practical terms, starting probate means securing the deceased's property, locating the original will, determining if court intervention is necessary, and formally filing a petition with your local probate or surrogate's court to obtain the legal authority to act on behalf of the estate.

At EverSettled, we know that breaking this massive responsibility down into actionable, chronological steps is the key to surviving the process. The legal definition of probate—a formal, court-supervised process of recognizing a will and appointing an executor to administer the estate—can sound intimidating. However, the reality of the start probate process is largely an exercise in intense organization, document gathering, and task tracking.

Disclaimer: EverSettled is an administrative software platform designed to assist with estate settlement tasks, not a law firm. The information provided in this article is for educational purposes only and does not constitute legal or tax advice. Probate laws, court forms, filing fees, and legal deadlines vary significantly by state, county, and local jurisdiction. Executors should consider consulting a licensed estate attorney or tax professional in their state for specific legal guidance.

What to Do Before Starting Probate (The Pre-Probate Checklist)

Before you file any legal paperwork, there are immediate, non-legal tasks you must handle. Consider this your executor probate checklist for the very first days following a death. Jumping the gun and heading straight to court without this groundwork will only cause delays.

1. Secure Tangible Property and Valuables

Your immediate duty is to protect the assets of the estate. Ensure that the deceased's home is locked, secure, and maintained. If the home is vacant, you may need to pause mail delivery, ensure that basic utilities (water, electricity, heating) remain on to prevent property damage, and secure valuable items like jewelry, cash, and important paperwork. Remove perishables from the refrigerator and notify the homeowner's insurance company that the property is unoccupied.

2. Order Multiple Certified Copies of the Death Certificate

Almost every step of the probate process requires proof of death. You will need certified copies of the death certificate to file your probate court forms, claim life insurance, close bank accounts, and transfer property. The funeral home typically orders these for you. It is highly recommended to order at least 10 to 15 copies right away, as many institutions require an original certified copy rather than a photocopy.

3. Begin an Initial Inventory of Assets and Debts

Before you know exactly what to do before probate legally begins, you must understand the scope of the estate. Start compiling a list of known assets, bank accounts, investment portfolios, real estate, and outstanding debts. Gather the deceased's mail to find utility bills, credit card statements, and mortgage information. You will eventually need this information to understand duties of an executor and to determine if full probate is even required.

Finding and Filing the Original Will

If the deceased left a will, your next crucial step is to locate the original, ink-signed document. It might be in a safe deposit box, a home safe, a filing cabinet, or held by the attorney who drafted it.

Legally, the person in possession of the original will (known as the "custodian") has an explicit duty to file it with the local probate clerk's office. Many states enforce strict statutory deadlines for this action. For example, in California, the custodian has just 30 days to deliver the original will to the Probate Clerk's Office. Failing to file the original will within these statutory deadlines can result in the custodian being sued for damages caused by the delay.

It is vital to understand that simply dropping off the will at the courthouse does not automatically open the probate case. Lodging the will is merely a prerequisite. If you cannot find a will, the deceased has died "intestate," meaning state law will dictate who inherits the assets. In this scenario, you will need to read up on intestacy when there is no will and proceed by applying to be the estate's administrator rather than an executor.

Determining If Formal Probate Is Actually Required

One of the most common misconceptions is that every estate must go through a lengthy, formal probate process. Before you file a probate petition, you must analyze the estate's assets to see when probate is required.

Distinguish Between Probate and Non-Probate Assets

The American Bar Association notes that many types of property routinely pass entirely outside of the probate process. These are called non-probate assets. They include:

  • Assets held in a Living Trust.
  • Life insurance policies with designated beneficiaries.
  • Retirement accounts (IRAs, 401(k)s) with named beneficiaries.
  • Bank accounts with "Payable on Death" (POD) or "Transfer on Death" (TOD) designations.
  • Property owned jointly with the right of survivorship.

If the entire estate consists of these types of assets, you may not need to start probate at all.

Look for Small Estate Thresholds

If the estate does contain probate assets (assets owned solely by the deceased with no beneficiary designation), you still might be able to bypass a formal court proceeding. Most states offer simplified small estate processes or summary administration for estates under a specific dollar value.

These financial limits vary wildly across jurisdictions. In California, for example, if an estate is valued under a certain limit (which adjusts for inflation, ranging from $184,500 to $208,850 depending on the date of death), an executor might be able to use a simplified summary succession process rather than formal probate. Always check your state's specific laws to determine if you qualify for a streamlined process before committing to a formal petition.

Gathering the Necessary Probate Court Forms

Once you have determined that full probate is unavoidable, you must prepare the correct probate court forms. This paperwork is highly specific to the state and county where the deceased lived at the time of their death.

Generally, you will need to prepare:

  1. The Petition: If there is a will, you will complete a "Petition for Probate." If there is no will, a prospective administrator must file a "Petition for Letters of Administration."
  2. The Original Will: As mentioned, the original must be presented to the court.
  3. The Death Certificate: A certified copy to prove the decedent has passed.
  4. Affidavits of Attesting Witnesses: In some states, if the will is not "self-proving" (meaning it doesn't have a specific notarized block attached to it), you will need to track down the witnesses who watched the deceased sign the will and have them sign affidavits under oath.

Because state laws govern the probate process, requirements for executor bonds, initial reporting, and specific forms vary significantly depending on the jurisdiction. Some courts provide fill-in-the-blank packets online, while others strongly encourage or essentially require you to hire a local probate attorney to draft the pleadings.

Filing the Petition and Notifying Heirs

With your forms gathered, it is time to formally file probate petition documents with the probate or surrogate's court. This act officially begins the legal process.

To officially open a probate case, the proposed personal representative must file the petition to ask a judge for formal appointment. Be prepared to pay court filing fees when you submit these documents. These fees are not arbitrary; in many states, they are directly tied to the estimated value of the estate. For example, in New York, filing fees are tiered based on the overall value of the estate's assets, scaling up to $1,250 for estates valued at over $500,000.

Once the petition is filed, you have a strict legal duty to notify all interested parties. This includes anyone named in the will, as well as the deceased's legal heirs (distributees) who would inherit if there were no will. The court needs proof that these individuals know about the probate proceeding and have the opportunity to object if they believe the will is invalid or the executor is unfit.

In New York and many other states, family members entitled to a share of the property must either sign a waiver consenting to probate or be served with a formal "citation" (a court summons) to appear at a hearing.

Attending the Initial Hearing and Getting Letters Testamentary

After your petition is filed and the heirs are notified, the court will schedule an initial hearing. For many simple, uncontested estates, this hearing is largely procedural. The judge will review the petition, ensure the will appears valid, confirm that proper notice was given to all heirs, and check that no one has stepped forward to contest your appointment.

If the judge is satisfied, they will grant your petition. The court will then issue you your official letters of authority.

  • If there is a will, you will receive Letters Testamentary.
  • If there is no will, you will receive Letters of Administration.

These "Letters" are the holy grail of the start probate process. They are certified legal documents bearing the court's seal that prove to the world—banks, creditors, real estate agents, and government agencies—that you have the absolute legal authority to act on behalf of the deceased's estate. You cannot touch the deceased's bank accounts or sell their home until you have these letters in hand.

Obtaining an EIN for the Estate

Getting Letters Testamentary feels like crossing a finish line, but it is actually the starting gun for your administrative work. Once you are officially appointed, your very first task is to manage the estate's finances and taxes.

When a person dies, their social security number can no longer be used for new financial accounts, and their income-generating assets (like bonds, mutual funds, or rental property) immediately become the property of their estate. The estate is viewed by the Internal Revenue Service as a brand new tax entity.

Before you can open an estate checking account to pay debts and consolidate funds, an executor must apply for an Employer Identification Number (EIN) for the deceased's estate using IRS Form SS-4. Do not let the word "Employer" confuse you; it is simply a tax ID number for the estate. You can apply for this number for free directly on the IRS website. During the application, the executor is designated as the "responsible party" for the estate.

Having an EIN is crucial for tax season. If the estate generates more than $600 in annual gross income while it is open (for instance, from rental income or dividends), the executor must file Form 1041, U.S. Income Tax Return for Estates and Trusts. Furthermore, an estate administrator must file the final individual income tax return for the deceased person for the year they died, which is entirely separate from the estate's income tax return.

How EverSettled Keeps Your Probate Journey Organized

As you can see, figuring out how to start probate involves jumping between securing physical property, wrestling with court bureaucracy, and navigating IRS tax portals. The court grants you the legal authority, but it does not tell you how to organize the hundreds of administrative tasks, phone calls, and documents required to actually settle the estate.

This is where EverSettled becomes your indispensable companion. EverSettled is a comprehensive software platform designed specifically for executors. Instead of relying on a mess of legal pads and scattered digital folders, EverSettled provides a centralized hub to track your entire probate journey.

With EverSettled, you can:

  • Vault Crucial Documents: Securely store digital copies of the death certificate, the original will, and your Letters Testamentary so you can easily email them to financial institutions.
  • Discover and Categorize Assets: Keep a running, organized inventory of probate vs. non-probate assets.
  • Manage Debts and Subscriptions: Track incoming creditor claims, automatically identify recurring subscriptions to cancel, and ensure debts are paid in the correct priority order.
  • Follow a Tailored Checklist: Move through the post-filing administrative tasks with confidence, knowing you haven't missed a critical step.

While an attorney can handle your court filings, EverSettled is the organizational brain that empowers you to handle the day-to-day work of honoring your loved one's legacy.

Frequently Asked Questions (FAQ)

How long does it take to get Letters Testamentary? The timeline varies wildly by state and county. In some efficiently run rural counties, you might have your letters within a few weeks of filing the petition. In backlogged urban courts, it can take several months. You cannot access estate funds during this waiting period, which is why securing property early is so vital.

Do I need a lawyer to start probate? It depends on your state laws and the complexity of the estate. While some states allow executors to navigate simple estates "pro se" (without an attorney) using standardized court forms, many courts highly recommend hiring a probate attorney. If the estate is large, involves complex businesses, or if family members are prone to conflict, legal representation is an absolute necessity.

Who pays for probate court forms and filing fees? The estate itself is responsible for paying probate costs. However, because you cannot access the estate's money until you receive Letters Testamentary, the executor often pays the initial court filing fees out of pocket. You are legally entitled to reimburse yourself from the estate's funds once the estate bank account is opened.

What happens if I make a mistake on the probate petition? Errors on a probate petition—such as failing to list a known legal heir or incorrectly valuing an asset—can cause the court to reject your petition or delay your hearing. This is why thorough preparation and compiling a detailed initial inventory are crucial parts of the pre-probate checklist.

Can I sell the deceased's car before probate starts? Generally, no. Unless the car was held in a joint tenancy, in a living trust, or your state allows a specific small estate affidavit for motor vehicles, the car is a probate asset. You must wait until you have Letters Testamentary to transfer the title or sell the vehicle.

Sources and Further Reading

To ensure you are fully prepared for the road ahead, we recommend reviewing these authoritative resources:

Starting probate is undeniably challenging, but by following a structured checklist, understanding the required legal forms, and leveraging organizational tools like EverSettled, you can navigate this complex process with clarity and confidence.

EverSettled is not a law firm and does not provide legal advice. Probate rules, court forms, deadlines, fiduciary duties, and tax requirements can vary by state and by the facts of the estate, so families should speak with a qualified probate attorney or tax professional when they need legal or tax advice.