Wills and Probate

Legal gavel on a will

Many of us have heard nightmare stories of wills in probate. However, handling an estate can be done in an efficient and uncomplicated manner if you understand how the probate process works and how to avoid the hassles associated with it.

First, most probate problems are usually the result of the deceased’s legal, financial or personal problems, not the probate process itself. It is, therefore, important to fully understand the relationship between wills and probate.

Understanding Wills and Probate

Probate is a court proceeding used to resolve and disperse a deceased individual’s estate. During probate, the deceased’s debts are settled and property is passed to the appropriate heirs or beneficiaries. Whether a will can avoid probate is often argued; however, most agree that large estates cannot avoid the probate process.

How the Wills and Probate Process Begins

The wills and probate process begins when the county in which the individual dies opens a probate case. At that time, the executor of the will must provide to the court the original will. If a will does not exist, an individual is appointed by the court to act as the will’s administrator. The administrator is usually a close relative of the deceased, such as an adult child or spouse.

If the family of the deceased cannot agree on who should serve as the administrator, the court can appoint a public administrator to handle the task. However, it is important to know that a public administrator is paid with funds from the estate.

Admitting the Will to Probate

Once the probate case is open and the executor is identified, the judge sets a date for the executor to appear in court for an initial hearing. Probate depends on two factors:

  • The judge must first establish the validity of the will
  • The judge must order to admit the will.

Once the probate judge admits the will to probate, the county clerk records the will, and then the judge officially appoints the executor (or administrator). Once the will is admitted in court, it becomes public record, meaning that anyone can inspect it. Any other filings related to wills and probate are also made public.

Although the executor of the will does not have official authority to act on behalf of the deceased until the will is filed in probate court, the executor may use estate funds to pay for funeral expenses and to hire professionals, such as financial advisors and accountants.During the initial court proceeding, the judge also provides the executor with a certified court document that can then be used to show financial institutions and the like. The certified court document is often referred to as the “Letters of Administration” or “Letters Testamentary.”

How the Wills and Probate Process Works

The estate process varies from state to state. Many states have streamlined proceedings for small, straightforward estates, some states do not require probate court for small estates, and larger estates typically must proceed through a multi-step process.

The first step of the probate process involves collecting and identifying all assets of the deceased individual. The executor of the will usually takes an inventory of the deceased’s assets, including property, life insurance, retirement accounts, bank accounts, and the like etc. Once the executor has identified the deceased’s assets the executor must file this information with the probate court.

After filing the assets, the executor then usually sets up an estate checking account to pay the deceased’s final bills and to deposit money owed to the deceased. These transactions include depositing final paychecks and stock dividends, paying for funeral expenses, monthly mortgage payments, loan payments, and utility bills until the estate is settled.

Once the executor has paid all debts and expenses, and all claims have been paid out, any remaining property is distributed by the executor according to the will and probate guidelines. If a will does not exist, the administrator distributes the estate according to state law. It is important to know that real estate may be sold or transferred by the executor, but only after a designated waiting period set by state law.

Finally, the executor must provide the court with a final settlement that includes all estate dealings. Individuals who have an objection to the will and probate disbursements can come forward and appear in probate court. After the judge approves the final settlement submitted by the executor, the executor’s responsibilities are over and the estate is settled.

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