How Does Probate Work?


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A probate comes into consideration with the existence of a will.

A will is a declaration of a person’s wishes to be performed after the person’s death. A probate is a process supervised by the court in which the authenticity of the last will is verified and authenticated. The whole process is undertaken by the authorized executor of the will.

In case a will is not present, the probate still takes place depending on the laws of the concerned state.

What happens in probate work?

In probate, the assets of the deceased are valued, the last bills and taxes are paid, and whatever remains is distributed to the living heir/s.

Steps in Probate Work

Here are the steps involved in the probate process.

#1 Will Authentication

It is the law that when the person dies, and within a reasonable period of time, the person who is in possession of the last will of the deceased needs to present and file it in the concerned court of law. A copy of the death certificate needs to be attached, if mandated by the laws governing the state.

Forms for probate petitions are usually provided by the court. The judge then reviews the probate petition. All the beneficiaries are notified and there is a court hearing where the beneficiaries are given the opportunity to voice their perspective about the will. Sometimes beneficiaries contest the will, which lengthens the probate process considerably.

If no conflicting view arises, the court resumes the process to authenticate the will. Self-signed affidavits with two impartial witnesses is good enough. In simpler words, the role of the witnesses is to testify that the deceased signed the will affidavit in their presence.

Once the will is authenticated, the next step is to appoint an executor.

#2 Appointing an Executor

Often, the court simply agrees to make the person appointed in the will by the deceased the executor of the estate. If a person is not appointed, the court either opts for the next of kin or appoints one independently.

The role of the executor is to settle the estate according to the terms of the authenticated probate. The court gives the person the power to undertake transactions on the behalf of the deceased.

There is a caveat here, which is that the executor needs to file a bond with the court. The bond acts as an insurance in case the executor commits an error in judgment which causes financial damage to the estate and the beneficiaries. In such a scenario, the financial loss is settled against the bond posted by the executor.

The requirement of the bond is waived off if the same is mentioned in the will. However, if the executor is from a different state or not the person mentioned in the will, the beneficiaries prefer to attach a bond value to the estate for protection.

#3 Locating and Valuing Assets

The role of the executor is to locate, protect, and value the assets until the estate is settled. It is not uncommon to find that the deceased did not make a full and clear declaration of owned assets in the will. This leaves the job to the executor to go through tax returns, insurance policies, and other financial documents to ensure that all the assets, mentioned and unmentioned, are covered under the estate settlement. At the same time, a notice of the person’s death needs to be printed in the newspaper to alert the debtors and creditors.

Once all the assets are located, the next step is to protect it. Protection does not mean that the executor needs to physically live within the property. It means that the executor has to ensure that any mortgage payments, due taxes, and other bills are paid on time apart from keeping all the concerned financial and property documents safely.

The next step is to appoint an appraiser. Either the executor or the court appoints one. The role of the appraiser is to value the assets and submit a written report to the court.  Sometimes few assets need to be liquidated to pay off existing liabilities and file income tax returns.

#4 Estate Distribution

After the estate has been valued and bills settled, permission is sought from the court by the executor to distribute the remaining assets to the beneficiaries. A complete accounting report is submitted to the court to receive the permission.

In case any beneficiary is a minor, the estate share is turned into a trust managed by the court, the executor or anyone else until the minor becomes an adult.

Endnote

The time taken for the probate process to be completed is usually less than one year. It can take more if complications arise in the estate. If you want to know more or hire estate planning attorneys, you can find valuable information here.


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