Probate is the legal procedure of validating a will. The person writing the will is legally referred to as the testator. A testator designates the executor of the will, who will move it through the probate process. The people who inherit from a will are known as beneficiaries.
Probate courts are specialized courts that deal with the debts and properties of a deceased individual. The role of a probate court is to ensure that the deceased individual’s creditors are paid and assets are distributed to beneficiaries.
This article simplifies the probate process and fills you in on what happens at a probate court hearing.
Table of Contents:
- What is a Probate Court?
- What is the Probate Process?
- What Happens at a Probate Court Hearing?
- What is the Cost of Probate?
What is a Probate Court?
Probate courts are judicial courts dealing with guardianships, estates, and wills. Probate courts are responsible for determining the authenticity of a will. When a will is contested or questioned by the next of kin or beneficiaries, the dispute is settled by a probate court. The primary role of a probate court is assuring the settlement of debts of the deceased and distribution of property to beneficiaries.
When the testator does not specify an executor in the will, the court appoints an executor. The court-appointed executor manages the estate and represents. The executor appoints guardians to children of the deceased, identifies heirs and creditors.
When a person or an individual dies without making a will, their property is distributed to the next of kin. Inheritance is determined by the probate law known as the Law of Intestate Succession.
A surviving spouse is entitled to a share of the property. A court-appointed lawyer or executor further breaks down the inheritance for siblings, parents, aunts, uncles, and grandchildren.
When the deceased has preserved a will or testament, the property is distributed as per designation. However, in the probate process, the validity of a will is determined by a probate court. The court also settles disputes when someone contests the validity of the will.
What is the Probate Process?
The probate process is initiated when a probate petition is filed in court. The petition is usually
filed in a probate court by the executor designated in a will. When the deceased has made a will, a copy of it is filed in the petition.
After a petition is reviewed in court, the court issues a personal representative representing the estate. The personal representative is the executor when there is a will, and they are referred to as administrators when there is no will. The duties of an administrator involves the following:
- Opening a bank account for the estate.
- Publication of legal notifications in newspapers if required.
- Determining the authenticity of claims made by the creditors and paying them.
- Informing the beneficiaries through notices.
- Selling assets and property if required.
- Filing and organizing court documents.
- Final tax returns of the deceased -filing.
- Transferring the assets to beneficiaries.
When the court does not appoint the executor, a qualified probate lawyer is sought for assistance.
What Happens at a Probate Court Hearing?
The probate process of an estate happens in the county or city where the deceased had their principal residence. If the deceased possessed real estate or other assets in different places, the probate process might happen in different courts.
There are three probate court hearings in a typical probate process. The processes are managed by the executor or administrator of the estate. The first hearing happens when an official probate notice is issued to the probate court. If the will does not mention an executor, the court assigns an executor in the first hearing. If the testator designates an executor, the first hearing becomes more streamlined. Before the first hearing begins, the designated executioner often gets consent to probate and waiver of process from the beneficiaries.
The second probate hearing is referred to as a court confirmation hearing. The second hearing happens when an executor prepares the appraisal, inventory, and plans to sell the assets. The second hearing would oversee and approve asset sales. The executor presents the potential offers for an asset. The probate judge opens an overbid process similar to auctions, and interested buyers bid on the property.
The final probate hearing would include a review of the executioner’s final accounting process and asset distribution. The court also evaluates the attempts made to contact creditors and settlement of debts. Once the plan of distribution is accepted, the judge will dissolve the estate and close the process. The executioner then distributes the remaining assets to beneficiaries.
What is the Cost of Probate?
The cost of a probate process cannot be predetermined. The cost of a probate varies as it includes several things that are subject to change. Filing fees in courts, publishing notices, executor, and attorney’s fees are some of the costs included in the probate process. The probate attorney is paid on an hourly basis or a percentage of the estate value.
Based on the duration of the probate process, the cost of the process also increases. The probate makes the assets and debts of the deceased person a matter of public record.
The probate process is relatively simple and includes things such as determining the validity of the will, identifying beneficiaries, the appointment of an executor, and payment of the deceased individual’s debts. The first probate court hearing names the executor, the second approves asset sales, and the third hearing involves a review of the distribution and closing of the probate process.