Probate

Probate of an Estate

Probate of an estate is the legal process of going through the Probate Court to transfer the property of a deceased person after his or her death.

When is Probate necessary?

Probate is necessary when there are any assets in the name of the deceased person at the time of their death.

What types of assets must go through the probate process before the name of the deceased person can be taken off the asset?

Any asset that is only in the name of the deceased person requires Probate.

Examples of assets, if in the name of deceased, that require Probate are:

  • Real Estate

  • Bank Accounts

  • Stock

  • Certificates Of Deposit (CDs)

  • Savings Bonds

  • Partnership Interests

Assets that do not require probate include:

  • Joint Bank Accounts

  • Payable on Death (POD) accounts

  • Annuities

  • Life Insurance

  • Any asset owned by a trust

  • Jointly-owned assets with the exception of real estate (unless the real estate is jointly held with the rights of survivorship)

How does the probate process work?

A petition for probate is filed with the Court. The Petition is normally filed by the Person who is named as Personal Representative in the Will. The original of the Will is filed with the Petition. The petition is filed in the Probate Court in the county where the deceased was a resident at the time of their death or where property is owned. The original Will must be filed. Probate Courts nearly always require the use of the original Will.

Shortly after the Petition is filed, the Court will name the person named in the Will as the Personal Representative as the Personal Representative.

Thereafter a creditor's notice will be published in a newspaper. The creditors notice advises all creditors of the deceased person that they have eight months to file a claim against the estate or else their claim will be barred.

Within ninety days after the Personal Representative is appointed, an inventory of the deceased person's assets must be prepared by the Personal Representative and filed with the court. The inventory lists all assets of the deceased, including probate and non-probate assets.

During the probate process, any heir or person with a potential interest in the asset(s) of the deceased may object to the Will on the grounds that the:

  • Deceased was not competent at the time the Will was signed

  • The deceased was under duress or influence when the Will was signed

  • The Will was not signed with all legal requirements fulfilled

  • An additional Will signed after the Will filed with the Probate Court is not the last Will of the deceased.

The Personal Representative will review all creditors filed with the Probate Court against the decedent's Estate. If the Personal Representative does not believe a claim is valid, the claim may be denied by the Personal Representative and the claim will be disallowed unless the person making the claim requests a hearing so that the Court can make the final decision as to whether the clam is valid and should be paid by the Estate.

After the time to file the creditors’ claims has expired, the Personal Representative can begin to close the Estate. This includes paying the creditors, filing the necessary tax returns, preparing an accounting which accounts for income and expenses of the estate and the sale and distributions of assets during probate administration, and the distribution of the assets to the persons named in the Will. If an heir or devisee wants to challenge an action or proposed distribution, including who will receive which assets, a hearing will be held to resolve that dispute.

Probate usually takes a year or more to complete. In many situations no distribution of the assets in the estate will be made until the Estate is being closed.

Personal Representatives do not have to hire an attorney except to prepare a deed to transfer any real estate to those person(s) entitled to receive the property. However, many people find it very helpful to consult with an attorney who can assist them in their duties so that they don't make mistakes which may affect the probate process or subject the Personal Representative to personal liability.