What is Probate and How Does Probate Court Work?

By: ROS Team May 6, 2021

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Dealing with the complicated legal process is the last thing you want to deal with when you are mourning the loss of a loved one.  But this is often what happens during the probate process. Getting familiarized with the process will help you better prepare for and manage the process while you grieve.

What is Probate?

Probate is a legal process during which a person’s will is validated and executed. The court appoints an executor to conduct the probate process if a person isn’t named in the will.  During this process, the deceased person’s assets are determined and passed down in accordance with his or her final wishes.  Probate is also used when there is no will.  Probate also includes paying off the deceased person’s liabilities through their assets and distributing the remaining assets to the named beneficiaries.

Common Probate Terms:

Testator: a person who has provided a will.
Decedent: The deceased person whose will and assets are being administered.
Executor: The person dealing with the instructions mentioned in the will.
Intestate: A case when someone dies without leaving a will.
Administrator: A person appointed by the court to deal with assets without a will.
Letters Testamentary: An official letter issued by the court to authorize the executor for initiating the probate process.
Notice of probate and notice to creditors: Written notices served to involved parties, beneficiaries, and creditors by the administrator.

Probate Court Work

How Does Probate Court Work?

The probate process differs based on the will, but it generally involves the following:

  • Asset compilation and review;
  • Deb compilation and review;
  • Outstanding tax and liability payments; and
  • Distributing any remaining assets.

If the decedent had no assets, probate may be unnecessary.

Probate Process With a Will

The executor of the will initiates the probate process when someone dies. The rules differ in each state as it relates to deadlines for setting probate court dates. The first thing the court will do is ensure the authenticity of the will.  Once that’s complete, the court authorizes the executor to distribute the assets according to the decedent’s final wishes.

Probate Process Without a Will

The assets of a person who dies without leaving a will are distributed according to state law.  The court appoints an administrator to oversee the probate process and the administrator’s role is similar to that of an executor– he or she distributes the decedent’s property among beneficiaries after debts are paid.  When a person dies without leaving a will, intestate laws determine who can apply for the probate process.

How Long Does Probate Take?

There is no exact time–probate takes as long as it’s necessary to pay outstanding liabilities and distribute assets.  However, on average, the entire process can take up to a full year to complete and that’s if there are no disputes. If there are any disputes, the process may take longer.

How Long Does Probate Take

✓ Beneficiary Rights

The beneficiary is the person or persons who receive shares of the decedent’s inheritance as dictated in the will. In the absence of a will, beneficiaries are designated according to state law. Beneficiaries have certain rights.

The first is that the beneficiary has the right to information. The executor is responsible for informing all the beneficiaries once the probate process begins and should keep beneficiaries updated about the latest developments in the process. Executors must keep account of all transactions dealing with the decedent’s estate, and beneficiaries have a right to the information if requested. If an executor withholds information, a beneficiary has the right to hold the executor responsible and may file a lawsuit against the executor if they feel the executor is mismanaging their loved one’s estate.

Beneficiaries cannot make changes to the will, but they can make changes to their share of the inheritance, whether that means sharing it with other people in the will of giving it away or donating it to a charity or a family trust. The beneficiary would have to sign a deed of variation to execute their decision.

Conclusion

States have different rules pertaining to probate. If probate court is not required, it is assumed that settlements are done privately. Also, the cost of probate depends on how long the probate process takes. The longer it takes, the higher the cost.