Probate Process

When a decedent dies and he, or she, has a will or has assets that fall into intestacy then that decedents estate must go through the probate process. The probate process is a specific process handled in a specific court, called Probate court in most states, that assesses the property and heirs of a decedent and authorizes the disposition of the estate to the named beneficiaries in a will or through the states laws of descent and distribution.

Every states rules pertaining to the probate process are different and your estate planning lawyer should be, not only barred in your state, but also be familiar with the jurisdictions rules pertaining to will formation, descent and distribution and probate process.

The first step in a probate process consists of the presentation to the court of the petition for probate. This lets the court know that the decedent has passed and that the will is ready to be processed. The estate planning lawyer then must notify all individuals, and representatives, named in the will, as well as legal heirs. In many states the executor will be required to publicize the petition for probate in a newspaper where the decedent lived. This gives the opportunity for individuals named, or not named in the will, to object to the processing of the will. It also gives the opportunity to appoint the executor, administrator, or personal representative.

After there is notification to beneficiaries and heirs through mailing and through publication the estate will go to the court for a probate hearing. The purpose of the hearing is to determine the validity of the will and to appoint an executor. The hearing during the probate process may also require that the witnesses to the will be required to sign a declaration swearing to the authenticity of the will.

Then next step in the probate process will be for the executor, administrator or representative to identify, take possession, and manage the assets of the decedent’s estates. The executor will then take those assets and pay off any debts owed by the estate to creditors and to the government. In some cases the executor will have to sell off some of the assets in order to pay off debts. There are certain rules involved with the selling of assets for the settlement of debts. Certain bequests may not be touched and others may be accessed depending on the type of account. Once this is done a report will be filed with the court at which point the court will authorize the division of the decedent’s property.

Once this occurs the executor will start the process of getting property distributed through the will, or intestacy, to the rightful heirs and beneficiaries. After this is completed the estate will be deemed closed by the court and the estate may no longer be attacked by creditors or by individuals wishing to contest the will.

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