Probate – What is Probate?

The probate process also provides a mechanism for payment of outstanding debts and taxes of the estate, for setting a deadline for creditors to file claims against the estate (thus foreclosing any old or unpaid creditors from haunting heirs or beneficiaries) and for the distribution of the remainder of the estate’s property to ones’ rightful heirs.

Do we have to go through probate if there is a will? Why can’t we just distribute the assets as the will dictates?

Generally, it is necessary to go through probate or in the case of smaller estates, a less formal procedure that is still under the general supervision of the probate court, before the deceased’s property can be legally distributed.

Even if a person dies with a Will (which is known as dying “testate”), a court generally has to have an opportunity to allow others to object to the Will, and if there are any objections, to determine if the Will is valid, because it is always possible that

(1) there was a later Will (which, if valid, would replace the older Will), or

(2) the Will was made at a time the deceased was not mentally competent to make a Will, or

(3) the Will was the result of fraud, mistake or “undue influence” or

(4) the Will was not properly “executed”, or

(5) the so-called Will is actually a forgery, or

(6) for some other reason (such as a pre-existing contract) the Will is not fully valid, or

(7) there are other claims against the deceased’s estate that impact what the beneficiaries under the Will would receive.

For example, if the deceased owned real estate in his own name, no knowledgeable outside person would accept title to the property, and no bank would lend a new buyer mortgage money on it, unless the estate went through probate so that a “clear title” could be given to the new purchaser.

Similarly, few outsiders would enter into any other transactions involving the deceased’s property before the Will is “admitted to probate” and/or someone is lawfully appointed to act as an agent for the estate.

Who is responsible for handling the probate process?

The Personal Representative (sometime also referred to as the “executor” or “executrix” if there is a Will, or the “administrator” or “administratix” if there is no Will) is appointed as part of the probate proceeding and has the responsibility for diligently managing the estate through the proceeding, subject to established probate rules and procedures.

In many states, the probate court has a considerable amount of control over the activities of the Personal Representative, and requires that he/she/they obtain prior permission of the court before certain actions, such as the sale of real estate or business interests owned by the estate that may take place.

What are the main duties of a personal representative?

The main duties or tasks of a Personal Representative are to:

(1) determine if there are any probate assets;

(2) identify, gather, and inventory all of the assets of the deceased;

(3) receive payments due the estate, including interest, dividends, and other income (e.g., unpaid salary, vacation pay, and other company benefits);

(4) set up a checking account for the estate;

(5) ascertain who is going to get what and how much under the Will (if there is no Will, the state’s “interstate succession laws” apply);

(6) value or appraise the estate’s assets;

(7) give legal notice to potential creditors (the procedure and deadlines for creditors to file claims vary from state-to-state);

(8) investigate the validity of all claims against the estate;

(9) pay funeral bills, outstanding debts, and valid claims;

(10) pay the expenses of administrating the estate;

(11) handle various paperwork, such as discontinuing utilities and charge cards, and notifying Social Security, Civil Service, and Veterans Administration of the death;

(12) file and pay income and estate taxes;

(13) distribute the remaining property in accordance with the instructions provided in the deceased’s Will; and

(14) close probate.

What goes on in the probate of an uncontested will?

Typically the person named as the deceased’s Personal Representative (a more formal term is “Executor” or “Executrix”) goes to an attorney experienced in matters of probate, who then prepares a “Petition” for the court and takes it along with the Will and files it with the probate court.

The lawyer for the person seeking to have the Will admitted to probate, typically must notify all those who would have legally been entitled to receive property from the deceased if the deceased died without a Will, plus all those named in the Will, and give them an opportunity to file a formal objection to admitting the Will to the probate court.

A hearing on the probate petition is typically scheduled several weeks to months after the matter is filed. Depending on the state and sometimes who the named beneficiaries are, how long before the death the Will was signed, whether the Will was prepared by an attorney, who supervised the “execution” of the Will, and/or whether the Will was executed with certain affidavits, it may be necessary to bring in the persons who witnessed the deceased’s signature on the Will.

If no objections are received, and everything seems in order, the court will approve the petition, appoints the Personal representative, orders that the taxes and creditors be paid, and requires the Personal Representative to file reports with the court to assure all the deceased’s property is accounted for and distributed in accordance with the terms and conditions of the Will.

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ABOUT THE AUTHOR:

John Harris, is a licensed Cemetery Broker in the State of California. He has personally served over fifteen thousand families in preparing for cemetery and funeral services. He can be reached through his website: http://www.cemeterybroker.com