Probate is a legal process that is meant to establish a will as genuine and divide the estate as necessary. It is done in the county where the deceased resided at the time of their death. To "probate a will" generally means to present it before a court officer for verification, while the term "probate" is also used to reference the entire legal process following that verification.
To probate a will helps in transferring wealth in a legal and orderly manner. It ensures that taxes and debts are paid as necessary before any inheritance is doled out to the beneficiaries. If there is a valid will, it will give the instructions on how an estate is meant to be divided.
The formal process taken to probate a will can be a pricey and complicated one. If there are no complicated issues to deal with, many heirs decide to skip the formal process and save a few dollars by choosing alternatives. Many of these alternatives, like a living trust, must be put in place by the deceased prior to their death. For cases that involve complicated finances, heir disputes, or other legal issues, it makes sense to pay the cost to fully probate a will. A short-term probate is also possible for small estates. This is less expensive and a shorter length of time is involved.
At probate court, someone will petition to be sworn in as a personal representative, or executor of the estate. This person should be named in the will, but can be appointed by the courts if there is no one named. This representative files a Petition for Probate of Will and Appointment of Personal Representative or Executor along with a copy of the will, death certificate, and any other information that local authorities require at the probate court clerk's office. This document is what begins the official process to probate a will.
A hearing is usually held with the executor-to-be and witnesses to the will present. A judge examines the document and evidence to establish that the will is valid. Once the judge rules it as valid, he submits the will to probate and it is officially filed with the clerk's office. The executor is given official documents called "Letters of Administration" or "Letters Testamentary" to establish them as legally in charge of the remainder of the probate process.
Some states require the executor to publish a death notice in a newspaper. It lets all who may have stock in the death aware of it. Creditors and others have a specific amount of time from the date of publication to file their claims on the estate.
Next, the personal representative should go about the process of inventorying the estate. This ensures that there is enough money left in the estate to pay the necessary debts as well as shows that all property named in the will is accounted for. Many who create a will also create a basic inventory list of their valuables to assist their executor in this process.
Finally, the property is distributed. Creditors are paid, as are the heirs. Any remaining money after funeral expenses and other taxes and debts are paid is transferred to those named in the will as benefactors.
