What Is the Process of Probate?

The probate process is the legal process that is undertaken after a person dies. This process helps to identify the individual’s rightful ownership interests, pay off remaining debts and distribute property in accordance with the will or the laws of intestacy. This process involves several stages.

Each state has its own probate process. Some states have adopted the Uniform Probate Code and follow the less formal process that is provided for under that set of laws. Other states vary in how formal they are or how much supervision they provide. Most states have adopted shortcuts through the probate process that allow smaller estates to be handled more quickly and less formally than other estates that have a larger value to them.

Appointing a Personal Representative

If a will was made and is valid, the court will usually appoint the executor that is named in the will. Otherwise, a probate court may appoint a particular individual. State law may give precedence to who should serve in this capacity,
such as giving preference to a surviving spouse and then to any adult children. Normally, a person can apply to the court to be named as the personal representative.

Proving the Will

One of the first matters that is tended to is proving the will, if applicable. The executor submits the will to the probate court. He or she may also submit self-proving affidavits that substantiate that the will was witnessed and the testator or testatrix appeared to be of sound mind when he or she made the will. Alternatively, the executor may have the witnesses appear in court and provide testimony regarding these matters.

The will is admitted in the probate court in the county where the decedent lived or owned property.

Notification of Appointment

The executor has the legal duty to notify certain individuals of the testator’s death. This includes the beneficiaries who stand to inherit under the will and the legal heirs in accordance with the laws of intestacy. Additionally, an executor must notify known creditors of the appointment and how long they have to submit claims of the estate. Many state probate laws also require that the executor publish notice in the paper regarding the decedent’s death and his or her appointment.

Inventory of Assets

During the probate process, the personal representative or executor is given the legal power to collect income and assets of the estate. Then, he or she must create an inventory of the property of the estate. This includes cataloging all real estate owned, stocks, bonds, financial accounts and personal property.

In some states, the court will appoint a special appraiser who is responsible for assessing the value of an asset. In other cases, the estate may pay for an independent appraiser.

Payment of Claims

The executor must pay off all final expenses of the estate. Funeral expenses and estate expenses are usually given first priority. Some jurisdictions permit the executor of the estate to sell assets to pay off the debts that have been claimed against the estate.
Handling the claims against the estate is often referred to as “administering the estate.” The executor may have additional obligations, such as opening an estate checking account and acquiring an employer identification number for the estate for tax purposes. The executor must file an estate income tax return.

Other Obligations

During the probate process, the executor may be required to file certain legal documents, notices and proof of notices with the probate court. This information is determined on the state level. Additionally, the executor must usually post a bond unless this requirement was waived in the will. The executor may also be required to provide adequate income to the decedent’s immediate family for support obligations in accordance with state law.

Closing the Estate

After the statutory period for creditor claims has passed, the executor can seek to close the estate. An executor must usually notify heirs, beneficiaries and creditors that a final hearing is scheduled. Before the hearing, the executor transfers legal title and property to the beneficiaries or heirs. This is usually completed by the executor asking the court for permission to transfer the property. After the executor completes all of his or her obligations, files receipts with the court and provides all of the necessary paperwork required under state law, the executor asks to be released from the position and for the estate to be closed.

Provided by HG.org

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case.

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