Whether you are developing your own estate plan, have recently had a loved one pass away or have been asked to be the executor for someone else’s Last Will and Testament, a basic understanding of the probate process is crucial. In general, probate is a legal process that is often required to be completed when someone dies. Although state laws will vary with regard to what estates are required to be probated and which type of probate process is appropriate, there are some common aspects to the probate process.

When someone dies, the first thing that loved ones or family members typically do, from a legal perspective, is to look for a Last Will and Testament. The next step is generally to petition the appropriate court to initiate probate proceedings. Some states allow small estates with total assets under a specific dollar amount to avoid formal probate by using a small estate administration, small estate affidavit or similarly named procedure. If formal probate is required, the process can be lengthy and costly. As a general rule, formal probate is also required when a will was not executed in order to determine who the legal heirs to the estate are.

Someone must be appointed or approved by the court to oversee the day to day handling of the decedent’s estate. If a will was executed, this is the executor named in the will.  If there is no will, the court will appoint someone to act as executor. The assets of the estate are then inventoried and the debts paid. If there are no contested debts, a will contest has not been filed and all estate taxes have been paid, then the court will eventually approve the release of the remaining assets to the beneficiaries.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

Tags: Probate, probate administration, will

Leave a Reply