How does probate work?

Written by joseph nicholson
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How does probate work?
Probate explained. (Getty Thinkstock)

The word probate can be traced back to the Latin word meaning "to prove," which underscores one of the essential functions of probate early in the process. Probate is a special type of court process involved in managing the estate of a deceased person. The first step is the search for a will and, if one is submitted to the court, the judge must decided if the will is valid and is the most recent, operative will. In many states, a will is automatically invalidated if the testator marries or remarries without updating the will. If more than one will is put before the court, the judge must use the available evidence to determine which will be enforced.

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Who is involved in probate?

If a valid will has been entered with the court, the next steps are to identify the executor of the estate, creditors with claims on the estate, and beneficiaries of the estate. Only these so-called interested parties can come before the judge and make requests of the court. To be an interested party, an individual or entity must prove they fall into one of the three categories, beneficiaries by either being mentioned in the will or through right of intestate succession (which usually applies to spouses and biological children) and creditors by filing a valid claim with the court for money, property, or services owed. The executor is usually a competent individual, trusted and highly regarded by the decedent and their family. Sometimes it's a friend or family members, other times it's a friendly legal or tax professional. If no executor is nominated in the will, if they are deceased or unwilling to accept the responsibilities, or if no will is entered, the judge will nominate a personal representative, usually a professional associated with the court.

Probate process

The executor or personal representative has the general responsibility to administer the estate, which essentially consists of gathering all the estate's assets, identifying all its liabilities, paying off debts to the extent possible, and disbursing any remainder according to the will or the law. When the executor files their list of the estate's assets, some don't fall into the probate estate, like the homestead of a spouse and jointly owned assets. Most anything else owned solely by decedent, any cash, jewellery, bank accounts, property and investments, fall into the estate under the jurisdiction of the probate court. As the executor identifies the assets, they must also notify creditors and publish news of the decedent's passing to allow any unknown creditors to come forward and make claims. Sometime claims can be disputed, but most, such as credit card debt or mortgages, are processed easily. Once the debts are paid and any remaining assets distributed to beneficiaries, the executor files a final report describing how each part of the estate was handled and disbursed. At any time, beneficiaries can ask the judge to remove the executor if they behave negligently or commit fraud. Otherwise, after the final report, the probate case is closed.

Legal advice

It is highly recommended that you contact a local probate solicitor if you have any doubts or concerns about the process.

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