When most people hear the word “probate,” they immediately think that it’s a complicated and
expensive process. Probate is very common these days and it does not have to be a long, complex and
expensive process if everyone involved cooperates.
What Does Probate Mean?
Probate is a court‐supervised process where estates get settled. It involves authenticating a last will and
testament, if there is one, locating a person’s assets, determining their value, paying taxes and final bills,
and the distribution of the remaining estate to the rightful heirs.
When is the Probate Process Necessary?
The requirement to probate an estate varies from state to state. Probate is required when implementing
the provisions of a will left by the deceased. The probate process can also happen when a person dies
without leaving behind a last will and testament and he or she owned property that needs distribution
under the laws of inheritance. Probate is still required to settle the deceased final bills if there is no last
will and testament.
Authentication of a Will
Most states require that anyone in possession of a last will and testament of a decedent to file it with a
probate court within the shortest time possible. An application to open an estate’s probate is normally
done at the same time. Filing a death certificate might also be done at this time.
If the deceased left a will, a probate judge will confirm its validity. This process may involve a court
hearing. All beneficiaries listed in the will must be given notice of the hearing. If there was no will left by
the decedent, the heirs (those who inherit by law) must also be given a notice of the hearing.
The purpose of the hearing is to give everyone concerned an opportunity to contest the last will and
testament being admitted for probate. Usually, this happens when someone objects the appointment of
the nominated administrator, if someone is in possession of a more recent will, or if the will was not
drafted properly.
A will is deemed as valid by a probate court by relying on witnesses who were present when both them
and deceased signed “self‐proving affidavits” to make the will legally binding. Lack of a “self‐proving
affidavit” requires the witnesses to testify in court or to sign a sworn statement to verify that they
indeed watched the deceased sign the will before them and that the will in question is the actual will
that was signed.
Appointment of a Personal Representative or an Executor
After authenticating a will, the next step involves a probate judge appointing an executor (also known as
the administrator or personal representative). The administrator’s work is to settle the estate and
oversee the probate process. Typically, all wills name an executor. In other words, the departed appoint
an executor when drafting a will. The appointment of an administrator is normally done where the
decedent left no will.
The probate court then gives the administrator a document known as “letters of authority,” “letters of
administration,” or “testamentary letters.” This document gives the executor the power to enter into
transactions or act on behalf of the estate.
Posting Bond
At times, the administrator must post a bond unless the will state otherwise. Posting bond assures the
beneficiaries that they will be reimbursed in case the administrator commits grievous errors,
unintentionally or intentionally, that financially damages the beneficiaries or the estate.
Locating the Deceased Assets
An administrator’s first task is to locate and take possession of all the deceased’s assets. This is done to
protect the assets during the probate process. This process can be lengthy because the decedent might
have owned assets not mentioned in the will that no one knows about.
To locate such assets, the administrator digs through the deceased’s tax returns, insurance policies, and
other crucial documents. Administrators also collect documents concerning bonds, stocks, and bank and
investment accounts.
Determination of Date of Death Values
The value of the deceased’s assets must be determined from the day he/she died. This is done through
appraisals and account statements. An administrator can appoint an appraiser but some states require
the probate court to do so. The administrator should then submit a written report to the probate court
listing all the deceased’s possessions, their value, and the process used to determine their value.
Identification and Notification of the Creditors
All the deceased’s creditors must be located and notified about the demise. Unknown creditors are
alerted by the publication of a death notice in local newspapers by the administrator. After receiving this
notice, creditors have limited time to make claims against an estate for whatever amount the decedent
owed. The time to make these claims vary from state to state.
If an administrator believes that a claim is not valid, he/she can reject it and the creditor will have no
other option but to take the issue to the probate court. If the probate judge decides that the creditor
should be paid, the administrator will have to obey court orders.
Payment of the Deceased’s Debts
An administrator will then use the estate funds to clear all the deceased’s bills and debts, including all
valid creditor claims.
Preparation and Filing of Tax Returns
An administrator then files a deceased’s final personal income tax returns for the year of their demise.
The income tax returns will determine if the estate is liable for any taxes. If this is the case, due taxes are
paid from the estate funds. If funds are unavailable, the executor will liquidate the decedent’s assets to
raise money to clear the taxes owed.
Distribution of the Estate
After the completion of all these steps, administrators request the probate court for a green light to
distribute whatever is left of the deceased’s possessions to all the beneficiaries named in the last will
and testament.
The beneficiaries get whatever was left to them after an administrator accounts for every financial
transaction that he/she engaged in during the probate process. In some states, the beneficiaries can
waive the accounting requirement if they agree with the administrator.
To finalize the bequest, transfer documents such as deeds must be drawn and filled with county or state
officials for the transfer of the property (bequest). If beneficiaries include minors, the administrator is
required to accept the bequests and set up a trust because minors are not allowed to own property until
they attain the age of majority.
Intestate Estates
An intestate estate is where the deceased didn’t leave a last will and testament because one was never
made or if the deceased did so, it was successfully contested in a probate court or its validity was
rejected by the court.
In the case of intestate estates, the deceased’s assets pass to their closest relatives according to orders
determined by relevant state laws.