Probate Procedure

During an emotional moment, probate may be difficult and complex. Learn about the fundamental probate procedure here.

What you’ll discover:

What is the probate procedure?
How long does it take to complete the probate process?
What can I do if I disagree with the judgment of the executor or the court?
What can I do to avoid probate?

When a person dies, their possessions, money, and assets are divided to their remaining family members, friends, and creditors via the judicial procedure of probate. The rules and procedures differ depending on whether the individual died without a legitimate Last Will and Testament or another legal instrument stating what should be done with their possessions after they die. The answers to frequently asked probate questions may help you understand what to anticipate if someone close to you died, or how to properly arrange your own estate.

What is the probate procedure?

The probate procedure is divided into four major steps:

Starting the procedure.
Obtaining information on the estate’s assets and debts.
Debt repayment and asset distribution.
The estate is being closed.

To begin the procedure, generally inform the local court by submitting a request or petition for probate. If you have a Last Will and Testament, the court may request it at that time or at a later date. When there is a will, the court will appoint an executor to the estate. In the absence of a will, the court will appoint an estate administrator. If you have been appointed, you should save this checklist.

What happens next is determined by state law and the terms of the Last Will and Testament. If there is no will, the procedure is identical, only the court uses state law to decide who receives what.

In most cases, the actual copy of the will must be discovered and given to the court, together with a petition to the court including information on the deceased. (the person who died). The executor, or administrator, then gathers and inventories all assets before identifying and locating the beneficiaries (or heirs) and creditors. After acquiring all of the necessary information, the executor or administrator pays the necessary obligations and taxes, arranges how the assets will be dispersed, and withholds some funds to cover the expenses of their services and the probate procedure fees.

However, before debts are paid and assets are divided, anybody having a claim against the estate may petition the probate court and oppose to asset distribution. Furthermore, estate administrators are sometimes obliged to get court clearance before distributing assets or paying debts.

How long does it take to complete the probate process?

The probate procedure may take several months to a year or more, depending on the size of the estate, the number of beneficiaries, and if there are any objections to the intended distribution of assets. A complicated will might also lengthen the procedure.

Smaller estates often go through the procedure faster since an administrator or executor and the court have less work to do.

The court may need specific documentation before or after the distribution of assets to the beneficiaries in order to liquidate an estate or finish the probate procedure. A final report or accounting must be made with the probate court after final distributions of assets, and often just before final disbursements to beneficiaries. This is the time when beneficiaries may object to any things in the report or accounting that they feel are wrong or improper. It is also a time for them to address any last concerns they may have about the executor’s management of the estate.

The court authorizes the estate’s closure once any outstanding difficulties are resolved. The beneficiaries are then given their payouts and required to sign receipts that are lodged with the court. The court will dismiss the executor or administrator from their obligations and conclude the probate case after all of the receipts have been submitted.

What can I do if I disagree with the judgment of the executor or the court?

If you disagree with the judgment of the court, executor, or administrator, you should consult with a lawyer straight soon. Probate proceedings may be both legally complex and time-sensitive. If you do not speak out within a specified time frame, you may be unable to address your concern afterwards.

What can I do to avoid probate?

Unfortunately, avoiding probate may be impossible if the deceased did not have an estate plan in place that transferred all of their assets upon death. Fortunately, most jurisdictions have simplified the probate procedure for those with minor estates.

A individual or married couple might prepare their estate in a variety of ways to avoid probate. However, this requires forethought. Legal arrangements such as a Living Trust or certain forms of property titles may assist to reduce the quantity of assets that must be probated.