What is Probate and Do I Need Help With It?

A loved one has died.  The family has managed to organize memorial and funeral arrangements.  People came from near and far to pay last respects, tell stories, share memories, and draw the strength we all need to find in each other at a time like this.  Even though it’s a whirlwind, all of that is done after several days. Now what?

How do you go about closing your loved one’s affairs from a legal point-of-view?  Are there bills still owing?  If so, who pays them?   Who does what?  Who gets what?  How do we see that it’s all done fairly?  You believe there is a will in a safe deposit box down at the local bank.  What do you do about that?

Welcome to the wonderful world of probate.

What is Probate?

Probate is, at its most basic level, the legal process by which we pass title/ownership of assets from the person who’s passed away to his or her family, friends, and other loved ones.  The probate process also often includes settlement of debts the deceased person left behind and, if applicable, the setting of guardians for minor children.

Is there a will or a trust in place?

If there is a trust (often a revocable living trust) you may not need the probate process at all, if the trust is properly funded.  Administration of a trust is a topic for another day but a good place to start is to contact an attorney knowledgeable about trust administration.

If there is a will, you (or someone else close to the deceased) will need to probate that will in the probate court of the county in which the deceased resided at the time when he or she passed away.  There are different ways to go about this (e.g. – probating the will in common form, probating the will in solemn form, probating the will in solemn form with will annexed, no administration necessary, etc.).  Which of these choices is the right choice depends on many factors:  size of the estate, identity of the heirs/beneficiaries, and availability/competence of the person named as executor, among others.

If there is no trust and no will, you will be seeking to administer the estate through the intestacy process.  This is how estates are settled when the deceased leaves no will or trust to guide finalization of the estate.  Here you will likely first be seeking temporary and/or permanent letters of administration (court authority to settle an intestate estate).  How you proceed from there will, again, depend on many variables:  is there agreement about who should administer the estate, who are the heirs, what does the estate consist of, are the heirs in agreement about how to settle things, among others.

Probate Gets Complicated

If you find yourself at the county probate court, you may find many forms there which are useful in probate of an estate.  The tricky parts are what forms to use, how to fill them out, who gets copies of them, and how do you properly file them with the court.  Court personnel will usually be courteous and kind but they are prevented, by law, from giving legal advice.  That means they cannot give you the answers to all the tricky parts mentioned above.

Once you’ve selected the right forms, there are filing fees to be paid, copies to be served on heirs/beneficiaries, signatures to be collected from those heirs/beneficiaries, and notices to be published in the paper.  There are debts and assets to be accounted for and, depending on the will, appraisals and returns to be completed.

Can you do all this on your own?  You can.  Should you?  That’s another question entirely.  If you look at the process (and even begin it) and start to feel overwhelmed, maybe you need some help.  In that case, an attorney experienced in estate planning and probate is your best bet.


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