Probate Process

Probate Process

The process of probate refers whereby certain of decedent’s debts may be settled and legal title to the decedent’s property held in the decedent’s name alone and not otherwise distributed by law is transferred to the heirs and beneficiaries. If a decedent had a will and a property subject to probate. The probate process begins when the executor, who is nominated by the decedent in the last will, presents the will for probate in a courthouse in the country where the decedent lived or owned property. If there is no will someone must ask the court to appoint him/her as administrator of the decedent’s estate. Mostly this is the spouse or an adult kid of the decedent. Once appointed by the court, the executor becomes the legal representative of the estate.

The laws of probate vary state to state and may be fairly straightforward or very complex and costly. The probate laws of a particular state generally include the details of how the personal representative is appointed, the priority of creditor claims against the estate, the identity of the beneficiaries in the absence of will produced by the decedent, and distribution and closing of the estate.

The probate process is commenced by filling the original will and a probate petition with the court. After jurisdiction is complete and all issues have been addressed, the court will issue a decree granting probate and issue letters testamentary to the executor or executors named in the will. Letters testamentary is a document which gives the executor the authority to administer the estate. The executor will be responsible for identifying and inventorying the decedent’s property, having the property appraised, paying debts and taxes and distributing the property as the will directs.

If anyone believes that the will is not valid, that person may start a will contest by filling objections to the probate. Will and trust contests rose if they executed incorrectly, when it may be established that the testator was not of sound mind or delusional when the will was drafted and signed, or in case of undue influence being apply to the person, or in case of fraud.

In some cases it is possible to avoid probates completely. No probate may be required if the decedent created mechanisms for passing his/her property outside of probate. Some common properties that do not go through probate include: joint tenancy property, living trusts, joint bank accounts, life insurance proceeds, retirement benefits (401k’s, IRAs and other), social security benefits, personal property in small estates, etc etc…..

I general, closing probate typically requires completing accounting and/or distribution paperwork, having the heirs sign off on the accounting, and filling that paperwork with the county or state.

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