Probate Definitions & Questions

-What is the definition of probate?

Probate is the process through which a person’s last will and testament are managed. This includes personal property. In the simplest terms, probate is a process through which personal property is legally distributed according to that will. A second definition is a process of managing or “probating” an estate. This includes paying debts, taxes, expenses and distributing assets to the individuals designated in the legal will. 
Either an executor or a personal representative will be in charge of handling this process. If none was designated by the will, then often times the state will assign one if there is personal property involved.

-What should I expect from the probate process?

First, this process changes from state to state. However, a basic description of the process includes a copy of the will that will be delivered to a local probate court. Next, a Petition for Probate will be sent to the local newspaper for all to see the name the formal representative or executor. After that, creditors are empowered to send their claims against the estate (this lasts up to four months). This includes all taxes and debts. As this happens, a personal representative will get to work securing assets of the estate to distribute them. Information such as bank accounts and debts must be located during this time. Property titles too must be located and secured.

The representative will need to maintain insurance for the property and protect it from theft or damage. You may also be able to liquidate assets such as real estate and cars during this time especially to pay off creditors. 
Once this claims period is finalized and all assets have been gathered, the representative will file the final petition to the court so that heirs and beneficiaries can retain their inheritance.

And finally, the court will approve the petition and the assets will be distributed according to the will by the representative.

Responsibilities of Executors/Personal Representatives

-In the eyes of the law, who is legally responsible for handling probate?

If a will has been written, then the person referred to as an executor or Personal Representative will be responsible. Without a will, a court-appointed “administrator” will be in charge.

-What does the executor or personal representative have to do when tasked with probate management?

A personal representative is required to identify probate assets, gather and inventory them, receive payments and income, establish a checking account for the estate, determine who will get what according to the will or the state’s “intestate succession laws,” appraise assets, give legal notice to creditors, confirm claims, pay funeral and last expenses, manage paperwork, file and pay taxes, distribute property in alignment with the deceased’s will, and finally close the probate process.

What to Do When a Will is Contested

If someone files a contest against the will, then you can expect to stick out the process for a very long time. Requesting a contested will can be done by a child, parent, or even spouse who feels that the assets should be distributed differently than how they are in the will. If this happens, follow the directions of your state probate office for handling them.

Property Guidance

-Does all my loved one’s property have to go through probate?

No. However, to legally change titles between individuals the state may require it. In some cases, property assets can exchange ownership without probate, but that’s not always the case. For spouses, this process is much easier thanks to the “joint tenancy with rights of survivorship” provision.

Life insurance, IRAs, 401(k)s and other such accounts can usually be tendered without probate. If there is a “living trust” that maintains the property’s title usually passes the assets to heirs and beneficiaries without probate.