The Probate Process

The Purpose of Probate Proceedings

Probate is a legal process mandated by a court that determines how a person's estate will be distributed when they die. The basic goals of probate proceedings are to:

  • Confirm that the deceased's will is valid
  • Identify the deceased person's various properties and assets
  • If necessary, have the property appraised (determine its worth)
  • Distribute the properties to the appropriate recipients
  • Resolve any debts or taxes that the deceased may have left behind

How the Process Works

The probate process is initiated by the executor of the will, who is the person named in the will to handle the process. This is done by submitting a "Petition for Probate" with the court. The executor also has other duties, such as filing various papers with the court including a death certificate. If no executor is named, the probate court will appoint an "administrator", which is usually a close relative of the deceased.

Next, the executor will submit a copy of the will to the court to have it reviewed and verified. If the court concludes that the will is valid, it will be "admitted to probate" and recorded with the county clerk's office. The will then becomes public record, which means that any person can access the records.

If there are any issues with the will, such as a will contest or a challenge to the will's validity, these must be raised during the probate proceedings. If no will exists, then the properties will have to be distributed according to state laws.

After the will has been recorded, the property items are settled and finalized for the actual distribution. The executor should then complete all additional duties such as paying for administration costs, and they may begin the distributions. Any unnamed properties left over will also be distributed.

The court will grant the executor access to the deceased's account. It will issue a document called "Letters Testamentary" or "Letters of Administration", which will be recognized by financial groups and other institutions.

Avoiding Probate

In many instances the probate process can be altogether avoided. This may be a desirable option, as the process can be costly as well as time-consuming- heirs sometimes do not receive distributions until several months later. Probate may be avoided through such mechanisms as joint accounts and joint property ownership, the use of "payable upon death" accounts, living trusts, and making formal gifts. Consult with a lawyer for more information on these options.

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