Learn What Happens During Probate
Probate is the court-supervised process of authenticating a last will and testament if the deceased made one. It includes locating and determining the value of the decedent's assets, paying his final bills and taxes, then distributing the remainder of the estate to his rightful heirs or beneficiaries.
The Steps of Probate
Each U.S. state has specific laws in place to determine what's required to probate an estate. These laws are referred to as "probate codes." When a decedent dies without a will, they may be called laws for "intestate succession" or something similar. Probate is still required to pay the decedent's final bills and distribute his estate, even when he dies without a will.
Although the laws governing probate can vary from state to state, they're generally very similar. The following steps are typically required.
- Authenticating the last will and testament: If the decedent left a will, the judge will confirm that it is, in fact, the most recent valid will signed by him.
- Appointing a personal representative: The judge will appoint a personal representative, also called an executor or administrator, to oversee the probate process and to settle the estate. The decedent's choice for an executor is typically included in his will. In the absence of a will, the court may appoint next of kin.
- Locating the decedent's assets: The personal representative will locate and protect all the decedent's assets.
- Determining date of death values: The personal representative will determine the date of death values for the decedent's assets through account statements and appraisals.
- Identifying known creditors: The personal representative will identify all the decedent's creditors and notify them of the death. She may also be required to publish notice of the death in a local newspaper to alert creditors that she may not know about. Creditors typically have a limited period of time after receiving the notice to make claims against the estate for the money they're owed.
- Paying bills: The personal representative will pay the decedent's final bills, including creditors' claims. She can reject claims if she has reason to believe they're not valid. The creditor might then petition the court to have a probate judge decide whether the claim should be paid.
- Preparing and filing income tax returns: The personal representative will file the decedent's final personal income tax returns. She'll determine if the estate is liable for any inheritance taxes, and, if so, file these tax returns as well. She will pay any taxes due from estate funds, liquidating assets if necessary. Estate taxes are usually due within nine months of the decedent's date of death.
- Distributing the balance of the estate to the beneficiaries: When all these steps have been completed, the personal representative can petition the court for permission to distribute what is left of the decedent's assets to the beneficiaries named in his will.
An intestate estate is one where the decedent did not leave a valid will -- either he never made one or the will he did leave is not accepted as valid by probate court, usually due to an error in the document or because an heir successfully contested it. Probate steps remain much the same without a will, but the decedent's property is eventually distributed to his heirs-at-law, kin so closely related to him that they're entitled to inherit under the state's laws for intestate succession.