What is Probate?
Probate is a legal process whereby the court supervises transferring a decedent’s property after death. The probate court acts as a third-party manager making sure the will’s executor carries out the testator’s wishes, follows the required procedures regarding notice and accounting and decides any challenges to how the will is being interpreted or managed by the executor.
Contrary to common perception, probate is not required to transfer property after death; in fact, many decedent’s’ final affairs are administered without court involvement. However, there are often circumstances involving complicated estates or contested claims, which necessitate probate. Thus, avoiding probate may be desirable as an estate-planning tool; however, in some cases avoiding probate may not be possible due to legal requirements, which mandate certain types of estates be submitted to the probate court for disposition. If the option of avoiding probate is available, some estate planners may find avoiding probate an attractive possibility.
Initiating the Probate Process
The probate process begins by someone usually the person designated in a will asks the court to name an executor or personal representative formally. The designated party will file a formal document with the court along with the death certificate, and the original will in the county where the deceased person was living at the time of death. At this time, the probate court is formally being asked to oversee the process of administering a will, resolving disputes and ensuring that distributions are made to creditors, heirs, and beneficiaries.
The First Hearing
After the initial filing, the court will schedule a hearing, to provide interested parties an opportunity to object to the appointment of an executor of the personal representative. Before the hearing all interested parties including beneficiaries, heirs and creditors will receive legal notice of the hearing. In the event, a party objects the court will resolve conflicts regarding the appointment of an executor or personal representative by making a ruling as to whom should fill this role.
Letters of Authority
Once the executor or personal representative have been approved, the court will issue what is referred to as letters of authority which serve as the formal notice to the public that a person is authorized to act on behalf of the estate.
Proving the Will’s Validity
The probate court will require a will to be subjected to court scrutiny to ensure that its validity which includes an inquiry into whether it has been executed properly. Further, anyone challenging the validity of the will be provided an opportunity to challenge its distribution of property or present creditor claims.
Distributing Property and Closing the Estate
Once the time to present creditor claims has passed, and any will challenge have been resolved estate property may be distributed, and the estate may be settled. At this point, the executor or personal representative will request permission from the court to close the estate while providing an accounting how all estate assets have been handled. At this time the estate will close the court once these requirements have been satisfied.
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