When a person dies leaving assets, those assets must be passed on to others. It is possible they wrote a will before dying. If so, the will has to be validated by the court to ensure it is actually the true last instructions of the deceased before its instructions are carried out. The process of validating this will is known as probating the will.
In simple terms, the probate process is a legal process carried out to ensure that the assets of a deceased person are distributed lawfully. If a will is present, it is validated by the probate court before its content are carried out. If not, the court distributes the estate according to intestacy laws.
Where is probate carried out?
Probate is carried out in any state where the decedent owned property. It is officiated according to the laws of that very state. If someone dies leaving property in New York, probate will be done in New York. If that same person also has property in Florida, another probate process must also be conducted in Florida according to the probate laws of Florida. Each probate process will run independently since the laws are different.
Steps involved in the probate process
The steps involved in the probate process are as follows:
1. Filing a petition to the probate court
Probate begins when the executor or estate administrator files a petition to the probate court. This is done after the death has occurred. If there is a will, then it is the executor named in the will who files this petition. The petition must include the original last will and death certificate of the deceased. If you’re the executor, it is in your best interest that you hire a probate lawyer near you for professional assistance. From the moment you file the petition to the distribution of the estate, the probate process is riddled with legal formalities. Since you lack sufficient legal knowledge, the assistance of a probate lawyer becomes invaluable.
In the absence of a will, the probate court will determine who becomes the estate administrator. They often choose a spouse or adult child of the decedent. An estate administrator is simply an executor in the absence of a will.
2. Granting approval
The court can reject the will because it’s invalid or the executor has not provided accurate details in the petition—all the more reason to hire a legal professional. If the court approves, you’ll be handed “Letters Testamentary” which grants you the authority to settle the estate. In the absence of a will, the estate administrator is handed Letters of Administration instead. The court then fixes a date for a court hearing.
3. Notifying the public
The executor then has to notify the public that probate has begun. This is so that all beneficiaries, heirs-at-law, kin, relatives, and creditors of the deceased will be aware and can come forward with their claims. The executor can post on newspapers about this.
4. Court hearing
In the court hearing, all interested parties will be present. This gives them the chance to challenge or “contest” the will.
5. Collecting all assets, appraising and valuating the estate
The executor must then take inventory of all assets held in the name of the decedent and estimate their value. A probate attorney can help with this as they are well-skilled in estate inventory. The executor may also need to bring in an accounting professional to professionally appraise the estate. This appraisal, however, is not always necessary.
6. Paying estate debts, taxes, and probate expenses
An important part of the probate process is settling all outstanding financial obligations of the estate. These include estate tax, debts, funeral expenses, court fees, etc. All of these are paid from the estate account including attorney fees.
7. Disbursing the estate
After all financial obligations have been settled, then and only then will the beneficiaries be given their share. This depends on what’s left of the estate and what the will says. However, before the executor can distribute the assets, he must present a financial record of all expenses and income earned by the estate since the death of the testator.
Absence of a will
In the absence of a will, the estate is distributed according to intestate laws. Here, only heirs-at-law will receive from the estate. Typically, if there’s a surviving spouse and children, then these are the only people that would inherit under intestacy.
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