A will is a legal document by which people may designate the names of those individuals or organizations to which their assets should be distributed at death. When someone dies, a person must be appointed by a court to act as the representative of the deceased. Probate is the process of having a court authenticate the will as valid and appoint a legal representative to act on behalf of the estate to pay creditors and distribute the deceased person’s assets.
The Probate Process
Probate is governed by state law, so the procedures, paperwork and even the name of the court having jurisdiction can differ from state to state. Generally, probate in most states is a three-stage process:
Locating the will and filing a petition or application for probate
Administration of the estate after the court approves the will
Closing the estate after debts are paid and the assets are distributed to heirs and beneficiaries
Filing the Probate Petition
Probate proceedings are begun by filing the original will, a death certificate and a probate petition with the appropriate court in the county in which the maker of the will was residing at the time of death. The petition must include notarized statements from the all of the witnesses to the will attesting to the fact that they were present when the deceased executed the document voluntarily and knew it to be a will.
If the court is satisfied that the will was properly executed by the deceased, it will usually appoint the person named in the will to serve as the executor or estate representative. The court might order the executor to post a bond to ensure that the assets of the estate are protected from mistakes or wrongdoing on the part of the representative.
Administration of the Estate
Once appointed by the court, the executor the authority to gather and take charge of the estate assets and to pay the debts and taxes owed by the estate. If there is insufficient money in the estate to pay its obligations, the executor may sell assets as needed to raise money.
Closing the Estate
After all debts and taxes are paid, the executor of the estate must distribute the remaining assets in accordance with the wishes of the deceased as reflected in the will. A final accounting, in which the executor provides written proof to the court that all debts and taxes are paid and the assets distributed to heirs and beneficiaries, is the final step in the probate process.