How to Start Probate

Understanding what probate truly entails can alleviate concerns about the process, which may not be as complex as you might think.

Probate is a legal procedure that a will must undergo to establish its validity before any distribution to beneficiaries takes place. The testator, the person creating the will, appoints an executor in the will whose responsibility is to navigate the will through the probate process. Those who receive inheritance from the will are referred to as beneficiaries.

The steps in the probate process must be executed meticulously and in a particular sequence.

Step 1: Filing

Upon discovering a will, the initial probate step involves submitting a petition to the probate court, urging the will’s approval. The petition seeks the formal appointment of the executor to represent the estate.

All heirs and beneficiaries must be notified of the filed petition, giving them an opportunity to contest the will.

In various states, the notice of the petition must be published in a well-known newspaper to notify potential creditors.

When there is no will, a petition is submitted to take control of the estate, and a notice of administration is sent to all legal heirs.

The petitioner requests court appointment as the estate’s personal representative, similar to an executor’s role.

Step 2: Determining Assets and Debts

After the court appoints the executor or personal representative, they must identify and disclose all of the estate’s assets, providing an evaluation. Assets include real estate, vehicles, investments, bank accounts, cash, personal belongings, intellectual properties, and pets.

The executor gains legal control over these assets. Assets within a trust, like a living trust, elude classification as probate assets and remain outside the purview of the probate court.

In their role as executor or personal representative, they must notify all known creditors of the estate proceedings. Creditors have a specific timeframe to file their claims against the estate.

Step 3: Payment of Debts

As the executor or personal representative, it is your responsibility to utilize the estate’s assets to settle all outstanding debts. This encompasses various obligations such as loans, mortgages, utility bills, and credit cards. Additionally, you must file a final tax return for the estate and settle any owed taxes. Funeral expenses also fall under your purview.

In cases where the available funds are insufficient to cover the debts, you have the authority to sell the estate’s assets.

Step 4: Allocation of Assets

After settling debts, the executor follows the instructions in the will or state laws (if there’s no will) to distribute the remaining assets. If the will requires a trust, the executor sets it up as directed, and then presents a final estate account to the court.

Probate can take different amounts of time, from a few months to more than a year, depending on how complicated the estate is and the court’s schedule. To succeed in probate, it’s crucial to pay careful attention to details and follow a systematic approach.

Source:

1. Sember, B. (2020, December 23). The probate process: Four simple steps. Retrieved March 16, 2021, from https://www.legalzoom.com/articles/the-probate-process-four-simple-steps