Probate is the court process through which a will is proved valid or invalid.  It is the legal process for administering the estate of the deceased.

Steps

Authenticating the Last Will and Testament

Most states require that a will be filed with the probate court as soon as possible. The judge will confirm that the will is valid, which typically involves a court hearing.  The hearing provides an opportunity for everyone concerned to object to the will that was admitted for probate, perhaps because it was not drafted properly or there is a more recent will available.

Appointing an Executor or Personal Representative

The judge will appoint an executor who will oversee the probate process and settle the estate.  The deceased typically includes their choice for executor within their will.  However, in the case where there is no will, the court will appoint a next of kin, typically a spouse or child.

Posting Bond

Depending on the provisions of the will, the executor may need to post bond before he or she can act for the estate.  The bond acts as an insurance policy that will reimburse the estate if the executor financially damages the estate, whether intentionally or unintentionally.

Locating the Deceased’s Assets

The executor must first locate and take possession of the deceased’s assets in order to protect them during the probate process.  This can be time consuming, as some assets may not be listed in the will, or may even be unknown to the spouse and other close family members.  The executor finds these assets by reviewing insurance policies, tax returns and other documentation.

The executor is responsible for ensuring that property taxes are paid, insurance is kept up to date, and all mortgage payments are made.

Determining Date of Death Values

The value of the deceased’s assets must be determined as of their date of death, often done through account statements and appraisals.  An appraiser will appointed by the court, or the executor, depending on state laws.

Identifying and Notifying Creditors

The executor must identify and then notify all creditors.  This often requires publishing a notice of death in a local newspaper in order to alert any creditors unknown to the executor. Creditors typically have a limited time period to make any claims against the estate for any money they are owed.

Paying the Deceased’s Debts

All debts and final bills are paid, including any incurred during the deceased’s final illness, from the estate funds.

Preparing and Filing Tax Returns

The executor must file the deceased’s final personal income tax return as well as any returns necessary for estate taxes.  All taxes are paid from the estate funds, which can sometimes mean liquidating assets if there is not enough cash available.

Distributing the Estate

After completing all of the above steps, the executor can petition the court to gain permission to distribute any assets left to the beneficiaries named in the will.0

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How Long Does Probate Take

On average, the probate process takes six to nine months to complete after the probate case is opened with the court.  When there are disputes regarding the legality of the will or the distribution of assets the process can stretch out and take years to complete.

What Property is not included in Probate

Life insurance policies that designate a beneficiary or bank accounts with a ‘payable upon death’ beneficiary are not included in probate, neither is real estate held jointly with rights of survivorship.

Remember

Probate laws vary from state to state.  So, before starting the probate process, verify the laws that apply to your situation.