Probate is the legal process of distributing a deceased person’s estate according to their last will and testament and paying off any debt owed to their creditors. This process typically lasts four to six months but depends largely on the complexity of the will and size of the estate.
In order to begin the process, there must be an individual named as the executor of the will. In many cases, the decedent’s will explicitly appoints an executor. An application must then be submitted with the will and the death certificate in the county in which the decedent lived during the time of death. In some cases, such as an unexpected death, there may be no executor named in the will or no will at all. This would require a court-supervised probate process to appoint one.
Prove validity of the will
Once an executor has been named, they must supply the courts with evidence that the will is valid. In most states, this requires two witnesses, which the law prefers to not be heirs under the will. This ensures the will was made in proper capacity and was done freely.
An initial hearing is a formality to begin the legal process and usually doesn’t require attendance. Formal legal notice must be sent to all beneficiaries named in the will prior to the hearing. This step can lengthen if beneficiaries dispute the executor’s appointment or others included in the will.
In order to move forward with the distribution of assets to beneficiaries, all debts and liabilities due on the estate must first be paid. This involves alerting all creditors of the decedent’s passing and posting a death notice in the local newspaper for any unknown creditors.
In some cases, executors may be required to post a bond before handling an estate. This is because an executor is considered a fiduciary of the estate and the bond helps prevent fraud or mismanagement of assets. The bail amount will vary depending on the size of the estate and will be returned once the estate is closed without issues.
Evaluating the estate
While the probate is being processed by the courts, a bank account should be opened in the name of the estate. Assets should be gathered and funneled into this bank account so they can be used to pay off any liabilities to creditors. A list of these assets must be provided to the court, which may need to be appraised to determine the value of the estate. Court approval may be needed before selling assets to pay off liabilities.
The process of distributing assets to beneficiaries can vary from case to case and may be subject to court approval. Due to potential time constraints, such as money for students currently enrolled in college, the process may need to be expedited.
For hard assets that can’t be evenly distributed, such as homes and cars, a meeting with family members will determine how the asset with be handled. This commonly results in selling the asset and evenly distributing the proceeds. If an individual wants to take ownership of a hard asset, they must facilitate how to fairly compensate others.