Probating an estate is the legal procedure by which a court oversees the estate of a deceased person to make sure the debts and obligations are paid and the estate is distributed to the proper heirs. Some people believe probate is avoided if you have a Will and others believe the probate process does not apply to people who die without a Will. Neither belief is correct.

Probating an estate is the legal procedure by which a court oversees the estate of a deceased person to make sure the debts and obligations are paid and the estate is distributed to the proper heirs. Some people believe probate is avoided if you have a Will and others believe the probate process does not apply to people who die without a Will. Neither belief is correct.

If a person dies after preparation of a will, probate helps assure that the wishes of the deceased person are complied with. If a person passes away without a Will, then the passing of property will be determined by the state law where the person resided at the time of death. It is also not true that the state automatically gets the property if there is no Will.

Common Steps to Probate An Estate

The person chosen to be the personal representative or executor (the terms are often used interchangeably) by the deceased are generally forth in the Will. The personal representative is the person who manages and administers the estate. If you die without a Will, the court will select a personal representative for you. Related people usually have priority and a family member, such as your spouse or an adult child can request that the court appoints him or her as the personal representative of the estate.

The personal representative or an attorney he/she has hired begins the probate process by filing a document entitled Petition for Probate of Will and Appointment of Personal Representative with the probate court. Once the personal representative is approved, the court will issue to him or her Letters of Administration or Letters Testamentary (official documentation showing authority to act on behalf of the estate). The personal representative must agree to the appointment. Personal representatives are entitled to be paid for their services but often are not if they are family members.

If you have a Will, the court issues an order admitting the Will to probate, basically acknowledging the Will's validity unless there is a contest to the Will. Some Wills require the personal representative to "post a bond" with the probate court, which guarantees that the executor Will take good care of the estate. However, most Wills waive this requirement.

Notifying Heirs, Creditors, and the Public of Death

All heirs should be notified of the personal representative's appointment and of the probate proceedings. An heir or beneficiary can object if they want. The personal representative may also be required to publish a death notice in the local newspaper. This serves as a public notice of the estate's probate and enables creditors or people who think they have an interest in the estate to file a claim against it within a specified time period. This published notice makes estate part of the public record.

Inventory of the Property of the Estate

One of the jobs of the personal representative is to inventory the property of the estate or appoint someone do do that for them. This includes real estate and personal property. Once the inventory is taken, a value can be placed on the various assets of the estate. The personal representative needs to make certain there is enough property value to pay all of the debts before they start making distributions to heirs or beneficiaries. If there is not enough to cover all the debts, one or more beneficiaries may receive less than the deceased intended or even nothing at all after the debts have been paid off.

During the inventory, if property is found missing or is no longer owned by the deceased, sometimes replacement assets or the cash equivalent can be used to replace the missing property. Sometimes a Will simply provides for the sale of all assets and then a division of the proceeds among the beneficiaries.

Paying Bills, Taxes, and Distributing the Estate

Payments and Distributions are usually made as follows:

1. Estate administration costs (legal advertising, appraisal fees, personal representative fees, attorney fees, etc.);

2. Family allowances (For support of family members);

3. Funeral Expenses;

4. Taxes and other debts (medical bills, etc.);

5. All remaining claims; and

6. Whatever is left after creditors get their money is distributed to the beneficiaries named in the Will. If there is no Will, the laws in your state determine how and to whom the remaining property is distributed.

A personal representative is usually protected against any claims so long as the probate proceedings goes according to plan and all notices and communications are properly handled.

How Long Does Probate Take

Often probate procedures can be relatively straightforward and can be accomplished within a matter of weeks. More complicated matters such as a Will contest and may take months or even a year or two to complete. It all depends on the facts and circumstances of the case. The initial appointment of a personal representative can usually be done fairly quickly and then the personal representative has authority to pay bills, make distributions, etc.

You can find more answers to your probate questions at the website listed below.