November 20, 2017

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Probate Law

Probate is a court process where, after your death, your estate is distributed and its debts are settled.

Your estate includes the entirety of your assets, owned alone or jointly. Some examples include:

  • Real estate or real property, including houses, buildings, land and attached fixtures (like farming crops, landscape features, other developed or undeveloped acreage, etc.)
  • Tangible personal property, such as autos, boats, equipment, furniture, jewelry, or heirlooms
  • Cash assets, financial accounts, stocks, bonds, mutual funds and business enterprises or interests
  • Beneficiary interests, including trusts or life insurance policies

Property owned personally by you at your death must be reviewed and approved by the Probate Court (probated) prior to distribution to your heirs. Property owned by you through a living trust or held jointly with right of survivorship (see Estate Planning) does not need to be probated.

A Probate Attorney can help maximize the inheritance that is passed through to your heirs while minimizing the complications, taxes, and fees associated with the probate process in the jurisdiction (the laws in your home state). View qualified Estate Planning Law Firms in your area to find Probate Lawyers to get help with this process.

Probate Process

Probate involves a process of several steps, and the active involvement of at least one person (who is neither a judge nor an attorney):

  • Appointment of the Personal Representative (administrator or executor)
  • Validation of the will
  • Notification of beneficiaries, heirs, and creditors of the estate
  • Inventory of the estate
  • Resolution of outstanding debts
  • Distribution of assets
  • Discharge of Personal Representative and closing of the estate

Personal Representative

The Personal Representative (administrator or executor) is identified in the will, or if no will exists, he/she is chosen by the Probate Court. Even with a will, a Personal Representative has no authority until he/she is appointed by the Court. Once appointed, the Personal Representative is legally responsible for the estate and will shepherd it through the remainder of the process.

Validation of the Will

Once you have executed a will, the Personal Representative will present it to the Court for validation.

Notification

Notice of the existence of the estate is usually published in a local newspaper, and all known beneficiaries, heirs and creditors are individually notified.

Inventory of the Estate

The Personal Representative must identify all assets of the estate, prepare a detailed inventory and present that to the Court for its review.

Resolution of Outstanding Debts

The estate’s creditors must file a claim with the Court in order to be paid. Debts should be paid prior to distributing the assets to the beneficiaries or heirs. If necessary, the Personal Representative will sell the estate’s assets in order to pay the debts.

Distribution of assets

The Personal Representative distributes the remaining assets either according to the will, or if none, according the laws of the State for intestacy (where the closest heirs receive the estate). The assets may be sold in order to distribute the property.

Discharge of Personal Representative and closing of the estate

Once all of the debts are paid and assets are distributed, the Personal Representative files a final report with the Court, and if approved, he is freed of all liability for the estate. The Court then closes the estate, which generally forecloses any further claims for payment or a distribution.

Related areas:

Estate Planning, Wills & Trusts, Probate Court, Guardianship, Conservatorship