Probate is the court process for wrapping up a person’s estate. In probate, the deceased person’s personal representative (sometimes called an executor) works under the supervision of the probate court to inventory property, pay creditors, and distribute property to beneficiaries. If the deceased person left a valid will, the estate property is generally distributed according to its terms. If there is no valid will, estate property is distributed according to state laws known as intestacy laws.
The probate process expensive and time consuming, and many people plan their estates with a primary goal of keeping their property out of probate.
Starting a Probate Case
To open a probate case, you must file the death certificate, the deceased person's will (if there is one), and a formal probate petition with the probate court of the county where the deceased lived. The court will then hold a hearing to appoint the personal representative. Once appointed the personal representative will work with the court to wrap up the estate. If there is a will, the court will usually appoint the personal representative or executor named in the will. The personal representative's first task is to notify creditors and heirs of the probate proceedings. This may require publication of a notice in a newspaper.
An estate's personal representative must inventory all of the deceased person’s property, including any money owed by or to the decedent. Some property might be excluded from probate—for example, property that passes through a living trust or transfer-on-death deed. A personal representative must have all non-cash assets appraised to determine their fair value, create a written inventory of estate property, and file the inventory with the probate court.
The personal representative uses estate assets to pay all debts owed by the estate, including the estate’s own administrative expenses and any legitimate creditor claims. Similarly, the personal representative files the deceased person’s final tax return and pays any taxes due on the estate. The personal representative also collects any debts owed to the estate.
To perform these functions, the personal representative uses documents issued by the probate court that show authority to administer the estate.
Probate Takes Time
Except for any living allowance granted to the deceased person’s dependents, the personal representative may not distribute estate property to heirs until all accounts are settled. Further, the personal representative cannot distribute property to beneficiaries until a waiting period expired. The purpose of the waiting period is to give creditors time to make claims against the estate. Once the waiting period expires, you may distribute either cash or property to heirs, unless the will states otherwise.
The speed of the probate process also depends on how quickly the personal representative works, as well as how busy or overloaded the court is. The probate process can last many, many months, and in some cases, years.
A Lawyer Can Help
The law surrounding the probate process is complicated. If you’ve been named to be a personal representative, or if you have concerns about a loved one’s probate estate, you will probably need help from a good lawyer, you will need help from a good probate or estate planning lawyer.
Questions for Your Attorney:
- How long will it take to probate my mother’s estate?
- Can I get an “advance” on my inheritance before the probate process is completed?
- To save costs, can I do some of the probate work myself?