The probate court process has been around for hundreds of years. While the details vary from generation to generation and location to location, the general principles are the same. In anticipation of eventual death, someone writes a will which governs distribution of property they own at death. Or, a person dies without a will and the laws of the person’s residence govern which family members inherit upon the person’s death. The probate court process is what happens between death and the final distribution of assets.
The term probate can be used in several ways; therefore it can have several different, but similar meanings.
To probate a will means to give the deceased’s will to a judge or court for the process of overseeing the final distribution of the estate in a way that complies with the laws of the jurisdiction and the will itself. The court can be involved in many aspects of the process of closing the estate, from determining if the will is valid and ensuring laws are followed to making sure the assets are properly distributed and closing the estate. In this case, the term probate would be used like the following example – “The executor probated the will of the deceased.”
Probate also can refer to the judge or court that is handling the estate in the previous example, such as, “The executor filed the will with probate.”
Finally, probate can describe the process, from start to finish, of settling a deceased person’s estate, as in, “The probate lawyer advised me probate can take more than 12 months.” In this case, probate would refer to the process of making sure the will is valid, distributing property and assets, paying off any final bills, taxes, and other debts. The estate can be closed if all has been completed properly and in accordance with the law.
When you die, your probate estate is everything that is in your estate that can be distributed by a will. You will also hear the terms “probate property” or “probate assets” to describe those items in your estate you can give in your will. During the probate administration, for example, an heirloom watch can be distributed. However, a life insurance policy cannot be distributed, so the life insurance policy is considered a “non-probate asset.” This is because the person who creates a life insurance policy names in the policy who is to receive the money upon death. During the probate process, you may find on a deed, for example, that a piece of property had a joint ownership interest, meaning it was not owned solely by the will-maker. If that is the case, the property may not be a probate asset and is not subject to probate administration. In this case the property would pass automatically to the other owners on the deed.
The role of the probate court varies depending on whether the will is contested or uncontested. If a will is contested, that means someone has reason to believe the will is not valid and should not be followed. Reasons to contest a will include believing the will-writer may have been improperly influenced when writing the will, giving items to beneficiaries he would not have without the improper influence. Other reasons to contest a will are that the will-writer did not have the mental capacity to write a will at the time it was written, or the will is not written according to the necessary formulas in the state in which it was written.
A will can be contested in its entirety or a particular section of the will can be contested. Whether the entire will or just a portion is contested, the probate judge considers evidence presented and makes a determination of the validity of the will or will section. A will contest proceeds in a very similar way as any other lawsuit.
Generally, though, most wills are not contested and the probate court does not require evidence on whether the will should be followed. Uncontested wills generally complete the probate process more quickly than contested wills.
Though the specifics vary from place to place, here are general steps to take when probating a will.
The process of serving as an executor may seem overwhelming. However, the probate court is there to help. Probating a will is designed to ensure the directions and intent of the will-maker are followed.