Locate the deceased's last will and testament

A Will, also known as a Last Will and Testament, is a legal document that determines who will receive a deceased person's assets.

Wills also name an Executor, Administrator, or personal representative who is responsible for following the directives of the will.

Good to Know To be valid, a will must follow certain guidelines outlined by the laws of the state where the deceased lived. For example, some states require that a will is witnessed by at least two neutral parties (who aren’t listed in the will), while some states only require that a notary witness the signing of the will.

During probate, the Probate Court in the state where the deceased lived (also called orphans' or surrogate’s court) will ensure that the Will was properly created, and then follow its directives. As such, the will guides the probate process.

Important If the deceased did not have a Will, then state laws will guide the probate process and probate court will dictate how assets are distributed.

For example, state law might say that John Doe’s wife is entitled to 50% of his estate, and his children are entitled to the other 50%. However, if John Doe has a will, he can stipulate how he wants his estate to be divided, and he does not have to follow state law.

If he wants to leave 75% of his estate to his wife and 25% to his brother, he can do so by leaving explicit instructions in his Will. In this case, local probate court must follow the wishes outlined in his Will instead of following state laws.

For this reason, it is important to review the deceased’s Will before starting the probate process.

Assets should not be given to the individuals named in the deceased’s Will until the legal probate process has started and debts of the estate have been paid.

State law requires that debts be paid before any assets are given to Beneficiaries, so it's important to ensure that the estate can pay its debt without having to sell its assets.

This means Executors or Administrators should not give any of the estate’s assets to Beneficiaries right away.

Read More For more information about distribute assets to heirs and beneficiaries, see the "Make distributions to heirs and beneficiaries" Chapter.

When the deceased's will does not specify what assets go to specific individuals, they will be divided among the deceased’s living heirs based upon the laws of the state where the deceased lived.

These laws, known as Intestacy Succession, will not only identify who is eligible to receive assets, but what share of the assets too.

For example, let’s say Jane Doe passes away with a will that does not name specific individuals but is survived by a husband and two adult children.

Based on the laws of the state where Jane lived, her husband is entitled to 50% of her estate and her children are entitled to the other 50%. Because Jane has two children, they would each be entitled to 25% of her estate.

If all the bills of Jane’s estate have been paid and there is $100,000 in assets remaining, Jane’s husband would be entitled to $50,000 and each child would be entitled to $25,000.

When looking for the deceased’s will, you might discover that they had a Living Trust.

A living trust, also known as a revocable living trust (RLT), is a legal document that identifies assets owned by the trust, and determines how one’s assets will be handled when they die.

If the deceased had a living trust, and you are an immediate relative, you should review the trust document to see if you are listed as a Successor Trustee.

If you are, then you should immediately begin paying any bills associated with the assets owned by the trust because assets owned by the trust do not go through probate.

Providers Review the document and contact an Estate Attorney, or Probate Attorney, if you have any questions about your responsibilities as a successor trustee. Find lawyers near you at the links below.