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What Is Probate? A step By Step Guide of the Entire Process
Jan 15, 2020
If you died today, what would happen to everything you own?
That's something you've likely asked yourself, and it's important to know the legalities surrounding yours or someone else's death. What happens to your assets? What if you didn't create a will?
That's where probate comes in. So, what is probate and how does it work?
The entire process of probate varies across states and are subject to different laws. However, while the nuances may differ, the basic details of the process are somewhat similar. Let's look into some of the most common steps involved.
That's something you've likely asked yourself, and it's important to know the legalities surrounding yours or someone else's death. What happens to your assets? What if you didn't create a will?
That's where probate comes in. So, what is probate and how does it work?
The entire process of probate varies across states and are subject to different laws. However, while the nuances may differ, the basic details of the process are somewhat similar. Let's look into some of the most common steps involved.
What is Probate and When Do You Need it?
When someone dies, it is necessary that their debts are cleared, assets are identified and consequently, distributed between their heirs and beneficiaries. This court-supervised process is called "probate".
If the deceased in question has a will, the court will look into its authenticity and validity. However, even if they do not, the court will still proceed with the probate. Some states follow a UPC (Uniform Probate Code), but others have their own unique set of rules and regulations that call for a different procedure.
While most estates would require to go through probate to be appropriately distributed, some states allow for smaller estates to follow a simpler procedure, or avoid the court-supervised procedure altogether.
If the deceased in question has a will, the court will look into its authenticity and validity. However, even if they do not, the court will still proceed with the probate. Some states follow a UPC (Uniform Probate Code), but others have their own unique set of rules and regulations that call for a different procedure.
While most estates would require to go through probate to be appropriately distributed, some states allow for smaller estates to follow a simpler procedure, or avoid the court-supervised procedure altogether.
The Probate Process: The Initiation
Most states incorporate parts of the UPC within their own personal codes. Even so, the process in the latter remains simpler and generally less formal.
To begin the process, you would need to file a petition or request in the court, to initiate probate. Along with this, you would need to provide a valid death certificate, proving the death of the deceased, as well as their will (if they have one).
You can also ask to be made executor (or administrator) unless otherwise specified within the will. The court may also choose to appoint an executor at their own discretion in certain circumstances.
To begin the process, you would need to file a petition or request in the court, to initiate probate. Along with this, you would need to provide a valid death certificate, proving the death of the deceased, as well as their will (if they have one).
You can also ask to be made executor (or administrator) unless otherwise specified within the will. The court may also choose to appoint an executor at their own discretion in certain circumstances.
The Notification
After this, you will be required to publish an official notice of probate in a newspaper, notifying creditors and the like of the initiation. Additionally, if you are already aware of such creditors, heirs, and names mentioned within the will, you can get in touch with them directly and let them know via legal notice.
You will need to submit the relevant proof that you complied with these steps and notified appropriate parties.
You will need to submit the relevant proof that you complied with these steps and notified appropriate parties.
Call for Hearing
At the next step, the court will call for a hearing where the relevant parties will be allowed to object at your appointment as administrator or executioner. If no one opposes, you will be officially recognized as the administrator of the deceased's estate and assigned the necessary letters of administration (legal papers that validate the executor's title and role).
Posting a Bond
Additionally, you may also require to post a bond as insurance for any losses you may cause to the estate during the probate process. This largely depends on whether or not the will requires you to do so, or if the court calls for it.
Where There's a Will...
If the deceased left behind a will, the validity will need to be determined. To prove its authenticity, a witness will need to testify either through a sworn affidavit or via court testimony. This is usually the standard process unless otherwise prescribed by state law.
Completing Inventory of Estate
The administrator is required to complete a full inventory of the decedent's assets, estates, property, stocks, and all relevant probate property. Some states may even appoint an appraiser to investigate the value of the probate property and assets.
Filing for Claims
All creditors to the estate will need to file their claims
within a specified period of time, usually prescribed by the state or the court. Claims filed after the deadline, would not be valid. The period may range from four to six months, as the court sees sufficient.
Settling Debts and Claims
Once the claims are made, they will be tested for validity, based on the necessary proofs provided by the creditors and claimants. The executor may then proceed with settling these debts from the estate. If specified by the will, the administrator may even be able to sell the estate to clear pending claims.
In absence of such a specification, they may seek permission from the court to do so, if they prove it necessary to the proceedings.
In absence of such a specification, they may seek permission from the court to do so, if they prove it necessary to the proceedings.
The Final Distribution
It is only after every creditor's claim is settled that the heirs and beneficiaries can get their shares. In the absence of a will, the court will apply the relevant state's succession laws. Here, the estate will be appropriately divided and transferred to the respective beneficiaries as per their legal claims to the shares and assets.
Closing the Estate
So what is probate used to accomplish? The distribution of a decedent's assets between beneficiaries and creditors.
Once all the debts have been cleared, the tax returns filed and the estate distributed, the probate is close to the end. To close the estate, you need to have completed all the above steps and provide the court with a proper account of your doings and all relevant receipts associated with those formalities.
While the formats may differ across states, this remains the general outline of the procedure involved.
Need help sorting out your assets and finalizing a will? Consider getting yourself an estate attorney to walk you through the process, and leave no stone unturned!
Once all the debts have been cleared, the tax returns filed and the estate distributed, the probate is close to the end. To close the estate, you need to have completed all the above steps and provide the court with a proper account of your doings and all relevant receipts associated with those formalities.
While the formats may differ across states, this remains the general outline of the procedure involved.
Need help sorting out your assets and finalizing a will? Consider getting yourself an estate attorney to walk you through the process, and leave no stone unturned!
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