WHAT HAPPENS DURING PROBATE? 

WHAT IS PROBATE?

Probate is the legal process for ensuring that: 

 

1) The decedent’s will is valid. 

2) The decedent’s legitimate debts and taxes are paid. 

3) The decedent’s property is distributed to beneficiaries as provided in the will.

 

PROBATE BEGINS WITH A PETITION

Probate begins when someone files a petition asking the probate court to validate the will and appoint an executor. That “someone” is usually the person named as executor in the will or a family member.

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THE WILL IS ADMITTED TO PROBATE

After the application is filed, a judge will review it, scrutinize the will, and sometimes hear testimony about its authenticity. If everything goes well, the judge will sign an order validating the will and appointing the executor. The court must appoint the executor before the executor has authority to act on behalf of the estate. Mere nomination in the will is not enough.  After being appointed, the executor receives documents from the court called “letters testamentary.” The executor furnishes these documents to banks, realtors, law firms, title companies, and other organizations that need to ensure that the executor has the legal authority to act on behalf of the estate.

 

ACCOUNTS FOR ASSETS

The executor must collect and account for all of the deceased’s assets. The executor will usually report the assets on a sworn court filing called an “inventory.” The executor opens a separate bank account for the estate. He or she must transfer the deceased’s existing accounts into this account. 

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PAYS DEBTS AND TAXES

The executor must settle the decedent’s debts and pay the decedent’s and the estate’s taxes. Creditors can file claims against the estate any time during the first six months of the opening of probate.  After the debts and taxes have been paid, the executor distributes the remainder of the estate to the beneficiaries according to their share described in the will. Beneficiaries can lodge objections they may have to the will, the executor's appointment, or the probate process.

 

CLOSING THE ESTATE

The executor will be required to file closing documents before the estate can be closed.  The estate can be informally closed of all debts and taxes have been paid and all beneficiaries under the will agree that they have received their share.  A formal settlement of the estate occurs when there may be dispute amongst beneficiaries or an unsettled claim.  Once the judge approves either the informal or formal settlement then the estate is closed and the executor is discharged of liability.