What Is Probate? A Comprehensive Guide

 

 

According to a 2017 survey, more than half of American adults don’t have a final will and testament.

When a person passes without a will, things can get complicated. Complications can make the probate process more difficult than it needs to be.

But what is probate, and when is it required? Continue reading to learn everything you need to know about the probate process.

What Is Probate?

The term “probate” refers to a court-supervised process that happens after a person passes away. During the process, the deceased’s last will and testament will get verified. A personal representative, also called an executor, will legally distribute the deceased’s estate.

When Is Probate Required?

Probate is mandatory any time a person passes away. Even people without a will have their estate handled through probate. Without a will, the process is slightly different.

If there is no will, the process will not need the last will and testament verified. It can also become more complicated without a will. The procedure detailed below assumes that a will was created.

Last Will and Testament Is Verified

The person in possession of the deceased’s last will and testament must turn it into the probate court shortly after their death. The person may be a legal representative or a close relative. Often, the death certificate must be filed with the will to prove the person’s passing.

A judge will verify the will is authentic during a hearing. Authenticating a will requires witness testimony.

Sometimes the will contains “self-proving affidavits” provided by witnesses. These are good enough for a judge and negate the need for more witness testimony.

A Personal Representative Is Appointed

Once the last will and testament get verified, a personal representative is appointed for the deceased. This person is sometimes called the executor of the estate.

The desired executor is usually included in the will. If a person weren’t named, the courts would typically appoint the next of kin. Next of kin could be a spouse or an adult child.

The estate’s representative will receive letters of testamentary. These letters allow the individual to act for the deceased legally. With the documents, the representative can enter into transactions in the deceased’s name.

Posting of Bond (If Applicable)

Sometimes, the executor must pay a bond before receiving their letters of testamentary. The bond acts as insurance against any major mistakes the personal representative might make. If errors occur, the bond goes to the estate for the beneficiaries.

Assets Are Located

Once an executor gets appointed, they’ll need to locate all the deceased’s assets. This includes investigating any assets that weren’t included in the will. In some cases, these funds might have been a secret from everyone save the deceased.

To allocate assets, the personal representative must read through insurance policies, tax returns, and other financial documents. There needs to be a tally kept of all assets found because the court will need this information.

Date of Death Values Are Determined

Using the information found during their investigation, the executor determines the date of death values. This value represents the total monetary worth of the deceased’s estate.

Creditors Are Notified and Paid

Before beneficiaries can receive their money, any outstanding balances must be paid. This will be the next step for the personal representative.

All creditors should be notified. These creditors can then file a claim against the estate to receive their monies. The executor of the estate has the right to dispute any claims filed.

Once creditors have been notified and given the option to file a claim for their funds, the executor will pay out the necessary monies. Some expenses may be related to final medical bills and funeral expenses.

Final Taxes Are Filed

The personal representative must file taxes for the deceased in the year they died. There may be taxes due on the deceased’s estate that need paying.

The Estate Is Distributed

With everything else taken care of, the executor can petition the court to distribute the remaining estate. The last will and testament will usually have detailed information on how this is to occur.

The courts will inspect financial documents in the petition before approving the claim. This inspection looks for misuse of funds. It also ensures everything was adequately taken care of in the name of the deceased.

If everything looks in order, the courts will allow the executor to distribute the funds according to the will. If no will is in place, the estate is usually given over to the next of kin. When there is no will, this last step can get especially messy.

Creating an Easier Probate Process

To ensure the probate process goes smoothly after you pass, it’s essential to cover every detail in your will. Ensure you name beneficiaries for all assets. This will make the personal representative’s job significantly easier.

You will also want to name an executor of the estate in your will. It helps to have a second person listed. A “runner-up” can keep your estate safe if the original representative passes away.

Do You Still Have Questions About What Is Probate?

Probate is a mandatory process that happens after a person passes away. During probate, the will gets verified, and all final financial matters are taken care of. Finally, the estate is distributed according to the deceased’s wishes.

Do you still have questions about what is probate? Or, do you need professional assistance handling your loved one’s probate process?

Contact us today. One of our team members will be happy to answer any questions you still have. They can also schedule you a legal probate consultation if desired.