A Basic Guide to Understanding Probate

When a loved one passes away, the last thing anyone wants to deal with is a drawn-out, complex legal and financial process. However, that often is what happens when a grieving family is faced with the probate process.

Common issues that arise can be stressful and frustrating. Who takes charge of a will after a person dies? What happens if a person dies without a will? Is there any way to avoid probate altogether?

We’ve put together this guide to help you gain a better understanding of the probate process, and to make it easier to navigate the distribution of a loved one’s estate and assets after their passing.

What is Probate?

When a person dies, they usually leave behind assets (money, property, or other valuable items) and debts (credit card, property taxes, mortgage, car payments, etc.) of some kind.

Probate refers to the legal process that ensures all debts are paid, and the legal title of a decedent’s assets is transferred to the appropriate heirs and beneficiaries. It also refers to the general distribution of a deceased person’s will or the estate of a deceased person without a will.

Other Important Terminology to Know:

Legal proceedings usually involve terminology that can be difficult to understand. Add in dealing with the loss of your loved one, and an already challenging situation can become even more overwhelming. Let’s take a closer look at this important terminology to give you a better understanding of probate. 

A few helpful terms to know regarding probate:

  • Will: A legal document expressing a person’s wishes about how their property is to be distributed after their death and which person manages the property until its final distribution.
  • Decedent: The deceased person whose estate is going through probate.
  • Personal Representative or Executor: The person named in charge of carrying out the instructions of the will.
  • Administrator: An executor that the court appoints for someone who dies without a will.
  • Intestate: Someone who passes away without a will. 
  • Intestate succession: Distributing the decedent’s estate in a manner that closely represents how the average person would have designed their estate plan had that person had a will.
  • Letters testamentary: A document issued by the court authorizing the executor to take control of a deceased person’s estate and carry out the will.
  • Notice of Probate: A notice sent to beneficiaries and heirs to give them a chance to assert their rights to an inheritance. Also allows beneficiaries the opportunity to contest a will at the beginning of the probate process. 
  • Notice to creditors: A notice is typically sent to creditors after heirs receive their notification, by mailing and/or publishing a notice in a local newspaper, depending on state law. When creditors receive their notice, they may then submit claims for debts owed. The executor or administrators of the will uses estate funds to pay the claims.
  • Small estate affidavit/summary probate/ summary administration:  Certain documents or processes may allow the executor to skip or shorten certain aspects of probate (i.e., distribute property without a lengthy court process). Estates below a specific value (depending on the state) are qualified for this.

Since each state has its own probate process laws, certain words may have different meanings. Therefore we always recommend consulting with a probate attorney in your state for any questions regarding terminology.

Steps of the Probate Process

As stated above, probate experiences can differ based on state laws, but a typical process may look like this:

1. Open probate

Once a will has been located, a petition with the probate court is filed, requesting that the will be probated. The probate petition asks that the executor formally be appointed to act on behalf of the estate.

The probate court will then verify that the will is legally valid. Until all of this takes place, no assets can be dissolved or distributed.

2. Send notices

The executor is responsible for letting the following know that they filled a petition:

  • All heirs
  • Next of kin
  • Beneficiaries
  • Any creditors that they become aware of when going through the deceased person’s financial records.

If an executor or administrator can’t find an address, they may put an ad in the local newspaper. 

An uncontested will refers to a situation in which all parties agree that the will is valid and don’t wish to challenge it. This enables the court to review and sign the appropriate paperwork. 

However, if a party has another version of the will or has reason to believe the will is not valid, they may challenge it. The opposing party would be required to prove why they think the will is invalid or be able to produce the will they believe to be accurate. 

3. Take inventory

The executor’s role also includes assessing the estate’s total value in regards to all of the decedent’s assets on the date of death. From checking the decedent’s bank account balance on the date of their death to having an appraiser evaluate the decedent’s artwork for its value, taking accurate inventory of a decedent’s assets is critical to show to the probate court and the heirs that the estate is being distributed properly and appropriately. 

4. Pay debts and distribute assets

Mortgage payments, home equity loans, income taxes, property taxes, etc., all need to be taken care of by the executor. The executor will also need to submit policy claims (medical insurance, life insurance, etc.), as well as close any open accounts, such as the decedent’s retirement accounts. If there is not enough cash on hand, assets may need to be sold to settle debts. 

The next step is for the executor to properly distribute all of the decedent’s assets and possessions to where and who they should go amongst the appropriate parties. 

This is the step that takes up the most time throughout the probate process. Therefore, an executor is usually entitled to receive compensation for managing the decedent’s estate. Some states allow for the last will to offer instruction on how an executor should be paid; the document may state a flat fee or leave the determination up to state law. If there is no will, state law governs how an executor will be compensated. Regardless, the money comes out of the estate. 

If any disagreements arise during this step, the probate court will get involved to make the final decisions.

5. Closing of the Estate

Once all assets are allotted accordingly, the executor must file a closing statement or the closing of the estate with the probate court. This petition serves as a legal notice that all property has been issued out and all other estate obligations have been taken care of.

A Creditor’s Role in Probate 

When it comes to outstanding debts from a deceased person, creditors have a limited amount of time to submit a claim. A probate court usually steps in for two main reasons:

  • If the executor wants to deny the validity of a creditor’s claim. 
  • If the deceased person’s debts are high and the executor needs to sell some assets (like a house) to pay creditors. If any beneficiaries disagree, they can bring it before the judge.

What Happens In the Event That There is No Will

If a person passes away without creating a will, they are said to have died intestate. In this situation, a family member or friend can petition the court for the right to act as executor. However, as stated earlier if there is no will, the court will usually appoint an administrator to the estate.  

The administrator will be responsible for collecting the deceased’s assets, paying any liabilities, and distributing the remaining assets to those parties deemed beneficiaries. 

They must also locate the legal heirs of the deceased, which would include surviving spouses, children, and parents. The probate court will decide what assets need to be distributed among the legal heirs and how to distribute them.

In Conclusion

The entire probate process can take a few months to a year or longer, depending on a variety of  factors such as the estate’s complexity, if the will is contested, the court’s schedule, etc. 

Successfully dissolving an estate through probate requires attention to detail and experience in the steps involved. Whether you need help contesting a will or if you are the appointed executor of a loved one’s will currently being contested, obtaining legal advice and assistance can save you time and effort.

Here at the Whittemore Law Group, we support our clients through the probate process and represent executors, administrators, guardians, trustees, and beneficiaries in navigating the loss of a loved one and the distribution of their estate. Reach out to us to learn more about our experience with probate and to learn your options.

Calculate funeral costs in your city or zipcode.