What is the Probate Process?
Probate is the court-supervised process of authenticating a last will and testament if the deceased person made one. It also includes tasks like:
- locating and determining the value of the person's assets
- paying their final bills and taxes
- distributing the remainder of the estate to their rightful beneficiaries
When Is The Probate Process Required?
Each state has specific laws in place to determine the legal process of probate. These laws are included in the estate's "probate codes,". There are also state laws for "intestate succession," when someone dies without a will.
In cases where there is no will, probate is still required to pay the decedent's final bills and distribute the estate. The steps involved are generally very similar, regardless of whether a will exists. However the laws governing probate can vary by state.
Authenticating the Last Will and Testament
Most states have laws in place that require anyone who is in possession of the deceased's will to file it with the probate court as soon as is reasonably possible. An application or petition to open probate of the estate is usually done at the same time. Sometimes it's necessary to file the death certificate as well. The probate hearing gives all concerned an opportunity to object to the will being admitted for probate.
Appointing the Executor or a Personal Representative
The judge will appoint an executor as well, also sometimes called a personal representative or administrator. This individual will oversee the probate process and settle the estate. The decedent's choice for an executor is typically included in the will. The court will appoint next of kin if they didn't leave a will. This is typically the surviving spouse or an adult child. This individual isn't obligated to serve. They can decline and the court will then appoint someone else.
The appointed executor will receive "letters testamentary" from the court. This means receiving documentation allowing them to act and enter into transactions on behalf of the estate.
It might be necessary for the executor to post bond before they can accept the letters and act for the estate. However some wills include provisions stating this isn't necessary.
Locating the Decedent's Assets
The executor's first task involves locating and taking possession of all the decedent's assets. This is so they can protect them during the probate process. This can involve a fair bit of time and sleuthing. Some people own assets they've told no one about, even their spouses, and these assets might not be delineated in their wills. The executor will ensure that property taxes and insurances are paid and are maintained. They may also secure or take possession of other assets such as vehicles, collectables, bonds and keep them in a safe place until ready for disbursement.
Determining Date of Death Values
Date of death values for the decedent's assets must be determined. This is generally accomplished through account statements and appraisals. The court will appoint appraisers in some states, but in others, the executor can choose someone.
Identifying and Notifying Creditors
The decedents creditors must be identified and notified of the death. Most states require the executor to publish notice of the death in a local newspaper to alert unknown creditors. Creditors have a limited time period to make their claim. Each state has different time periods.
Paying the Decedent's Debts
Valid creditor claims are then paid. The executor will use estate funds to pay all the decedent's debts and final bills. This includes those that might have been incurred during the final illness.
Preparing and Filing Tax Returns
The executor will file the decedent's final personal income tax returns for the year they died. They'll determine if the estate is liable for any estate taxes, and, if so, file these tax returns as well. Any taxes due are also paid from estate funds.
Distributing the Estate
When all these steps have been completed, the executor can petition the court for permission to distribute what is left of the decedent's assets to the beneficiaries named in the will. This usually requires the court's permission. Permission is typically only granted after the executor has submitted a complete accounting of every financial transaction they've engaged in throughout the probate process.
An intestate estate is one where the decedent did not leave a valid will. This is due to the fact that either they never made one. It cuold also be because the will is not accepted as valid by the probate court due to an error in the document or because an heir successfully contested it.
The most significant difference is that in the absence of a will that makes their wishes known is that the decedent's property will pass to the closest relatives in an order determined by state law.
Disclaimer: This article is not intended to be construed as legal advice. Prior to making any significant decisions relative to its content, you should consider seeking the advice of a licensed attorney that specializes in Estate Law for your particular state.
The information above has been summarized and is from https://www.thebalance.com/what-is-probate-3505244