Probate is a legal process by which the court collects a deceased person’s assets and transfers them to beneficiaries. The court also resolves all the claims against the will.
Probate is a court supervised process. The process of probate begins when the executor (nominated by the decedent) presents the will in the court. The executor is usually the spouse, child or relative of the decedent person. If there is no will, then a family member can ask the court to appoint him or her as the administrator of decedent’s estate. The executor and the administrator has same legal rights and responsibilities. Basically, the process of probate depends on whether the deceased had a will or not. It may be contested or uncontested.
The process of probate is carried on the behalf of the deceased person, whether he or she has a will or not. Simply, the process of probate generally involves following steps.
File a Petition: The probate process begins when a petition is filed in probate court. This is done at probate court clerk’s office. A certified copy of death certificate must be shown in the court. By submitting all the required documents, the court will issue an order of admitting the will to probate. It is initiated in two ways.
- If there is a will then they admit the will and appoint the executor
- If there is no will then they appoint an administrator. This is considered a long estate/probate law process.
Then the court hearing notice is issued to all the decedent’s heirs and beneficiaries of the estate. Generally the hearing notice is published in the local newspaper.
Following Appointment by the Court: The personal representative then provides a printed notice to all creditors of the estate. Any creditor, who has any objection and wants to claim for assets, is now provided the time limit to do so by the court. The inventory and collection of all decedent’s assets such as real property, life insurance, bank accounts, loans and business interest is carried out. If the property consists entirely of the bank funds then the account numbers and latest cash balance will be listed.
Paying the Estate and Funeral Expenses, Bills and Taxes: The personal representative is not responsible for paying the decedent’s estate and funeral expenses. Generally the cost for the process of probate is paid out of estate assets. It includes fees of the personal representative, attorney’s fees, court cost, funeral expenses, taxes, bills and any other claims. The personal representative may find a cost effective estate planning attorney to take advice from regarding the estate expenses or defend any legal claim.
Formal Transfer of Estate Property According to the Will: When all the claims and expenses have been paid then, the personal representative takes the legal authority from court to distribute the remaining estate property to beneficiaries according to the will. If there is no will then the administrator transfer the property as per state intestate succession law.
Intestate Proceedings; when a person dies without a will the probate court distribute deceased person’s property according to state law.