The Probate Process

Patrick O’Brien - July 14, 2015

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.

Probate Definition

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.

What assets are subject to probate?

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.

Is a will always followed exactly as written during the probate process?

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.

How do you Probate a Will?

Though the specifics vary from place to place, here are general steps to take when probating a will.

  • Find the will – if at all possible, you need the original, not a copy.
  • Determine the right probate court – This is generally the probate court in the county where the deceased legally resided at death.
  • Take the will, along with a legal filing, to the probate court -A probate attorney can help you prepare the proper document to file the will with the probate court. If you do not have an attorney and can’t afford one, visit the probate court and talk to the staff. They are generally very helpful and can provide information regarding what resources are available. There is also generally a fee associated with this filing. If there is no will, there will be a different filing.
  • Appear at a hearing at the probate court -Whether you are in a courtroom or in the judge’s office, the judge will likely place you under oath and ask basic questions. These might include asking whether the decedent lived in the county and is this the decedent’s signature on the will.
  • Confirm an executor – If you are the executor named in the will, the judge will confirm your service as executor by asking if you want to serve. If you do not, you do not have to. The judge will name someone else to serve as executor. If there is no will, the judge will appoint someone to administer the estate in the same way an executor named in a will would. The executor or administrator will be sworn in for service by the judge.
  • Obtain letters of testamentary – Once you are named executor, the probate court will provide you with letters of testamentary. These documents will certify that you are allowed to handle the administration of the estate. These documents will authorize you to do things like close bank accounts, transfer stocks, and sell real estate. As executor, you will need these documents to complete your executor duties.
  • Complete executor duties and keep records for the court – As executor, you will be responsible for doing the things the probate court instructs like notifying beneficiaries of their status under the will, filing an inventory of assets with the court, and providing notice through publication, to creditors. During probate, the executor will pay debts and taxes, collect any money owed to the decedent and distribute the property to the beneficiaries as listed in the will. The interactive checklist here on executor.org provides the typical steps for executors to follow, making it a great resource to get and stay organized during the process (which typically takes a year or more to complete). If a person dies without a will, there are more steps, including determining proof of family members (who will be heirs and inherit the decedent’s property).
  • Special circumstances – If a person dies and leaves out certain types of family members (generally a spouse or minor children), the probate court can, by following state probate law, override the will. The court can require the executor to give a certain portion of the estate to these family members who were left out of the will.
  • Close the estate – Once the executor successfully completes all her duties and any mandated time after notification of death to creditors has passed, the probate court will close the estate. Typically, this requires another visit to the courthouse and an appearance in front of the probate judge.

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.