When a person dies, their last will and testament (assuming they prepared one in advance) is handled and their wishes for the distribution of their personal property implemented through a process called probate. Probate simply means the procedure by which their last written directives are legally certified as the final statement of their wishes regarding their worldly possessions (including any property or properties they may have owned).  It also confirms the appointment of a person or entity the deceased person selected to administer their estate.  The term probate is also frequently used to refer to the entire process of “probating” an estate.  In this usage, it refers to the entire process that gathers all available assets, pays any outstanding debts, taxes, administrative expenses and then finally makes the specified distribution of remaining assets to those persons or entities designated by the will.

An original (signed and executed) copy of the will is delivered to the local probate court or whatever court supervises probates in that locale. A notice of the Petition for Probate is published in a local newspaper. This is usually a requirement prior to the formal appointment and/or certification of the personal representative (executor/executrix) who was named in the will, assuming a will exists (legally referred to as “testate”), or the court-appointed administrator if there is no will (referred to as “intestate”). After the certification or appointment of the personal representative has been made official, they then file their formal petition with the court to probate the estate. Following that step and generally for a legally specified period of time (four months is typical) from the date of the public notification of the petition for probate, creditors against the estate are allowed to file their claims. This includes any previously unpaid debts, other liens or judgments, debts resulting from medical care, funeral expenses, outstanding taxes, and other encumbrances. 

During this same period, the personal representative will be working to identify, gather and secure the assets of the estate in such a manner as to be able to ultimately distribute them in accordance with the will or court directives. To accomplish this, the personal representative will also need to locate and access all banks and other types of security accounts; determine any of the remaining debts owed by the decedent that require settlement; determine any real property(s) owned by the decedent and secure the titles to these and any other assets that will ultimately need to be disposed of. It’s also the responsibility of the personal representative to maintain these assets safely, properly and in good condition during their period of stewardship as well as collecting any income (rents, residuals, interest payments, etc.) that are due to the Estate. To do so, the representative must be aware of and maintain proper insurance coverage; protecting the assets from theft or damage, etc. The personal representative may also (if permitted or desired) liquidate some of the hard assets such as cars, real estate, etc. This is often done to provide the cash required to compensate creditors. 

When the formal claims period has expired and all assets have been collected; property that needed to be sold has been sold; and assuming no problems have arisen such as a contesting of the will by any of the heirs or other contested claims against the estate, the personal representative will usually file their final petition with the probate court to allow a complete distribution of all remaining assets to the heirs and beneficiaries. This final petition includes a detailed accounting to the court explaining all of the expenses incurred, funds and assets received and disbursed, how any assets were invested or otherwise used, and the proposed final plan for final asset distribution. Assuming the court approves this petition, the personal representative then distributes the assets as instructed in the will and detailed by the approved petition, and/or as required by law or the courts if there was no will.

The duration of the probate process is subject to lots of variables, but a general rule of thumb is approximately six months. However, you should be aware that it can, and frequently does, takes far longer. Some of the matters that can delay the completion of the process can include:

• Problems in locating the heirs and beneficiaries
• A contest of the will (disputing the validity of the document) by the heirs or beneficiaries
• Claims or liens against the estate that remain unsettled
• Real estate or other property that cannot be sold for some reason
• Failure to properly notify one or more creditors during the claim period
• Dissatisfaction regarding the actions of the personal representative by the heirs or 
• beneficiaries

The complexity of the task and this myriad of possible delaying factors make it all the more imperative that a well-organized and meticulous personal representative be selected who can effectively manage the process and reduce the chances of complications and delays. Nathan Mitchell is a great resource in this regard. 

If there is a will, the Personal Representative (sometimes referred to as the “executor” or “executrix”) is usually responsible.  If there is no will, an “administrator” is appointed by the court as part of the probate proceeding and that person has the responsibility for managing the estate through the proceeding, subject to established probate rules and procedures.

In many states, the probate court has a considerable amount of control over the activities of the Personal Representative and requires that she or he obtain prior permission of the court before certain actions, such as the sale of real estate or business interests owned by the estate, may take place.

The cost of probate may be set by state law or by practice and custom in your community.

When all the costs are added up – and the costs may include appraisal costs, executor’s fees, court costs, costs for a type of insurance policy known as a “surety bond”, plus legal and accounting fees, probate can easily cost from 3% to 7% of the total estate value, and more. If there is a “Will contest” all bets are off.

Possibly. In some states, there are processes often referred to as “simplified procedures” that are used for estates whose value is below certain financial thresholds. The limits can be as small as a few thousand dollars or as much as a hundred thousand dollars. It depends on the court of jurisdiction. This is certainly a matter to consult with an attorney about, but if there is real estate involved or there are debts against the estate, regardless of the size of the estate, the full probate process may be required or advisable.

Typically, the person named as the deceased’s Personal Representative (a more formal term is “Executor” or “Executrix”) goes to an attorney experienced in probate matters, who then prepares a “Petition” for the court and takes it, along with the Will, and files it with the probate court.

The lawyer for the person seeking to have the Will admitted to probate typically must notify all those who would have legally been entitled to receive property from the deceased if the deceased died without a Will, plus all those named in the will, and give them an opportunity to file a formal objection to admitting the will to probate.

A hearing on the probate petition is typically scheduled several weeks to months after the matter is filed. Depending on the state, and sometimes who the named beneficiaries are, how long before the death the Will was signed, whether the Will was prepared by an attorney, who supervised the “execution” of the Will, and/or whether the Will was executed with certain affidavits, it may be necessary to bring in the persons who witnessed the deceased’s signature on the Will.

If no objections are received, and everything seems in order, the court approves the petition, appoints the Personal representative, orders that taxes and creditors be paid, and requires the Personal Representative to file reports with the court to assure all the deceased’s property is accounted for and distributed in accordance with the terms and conditions of the Will.

The appropriate court in the State and County where the deceased permanently resided at the time of his or her death is usually the court where the probate is processed. A court that handles issues such as these can often be referred to my several different names. For example, in the state of New York, the court that handles probate is called the Surrogate’s Court, while, in the state of California, it is called Superior Court, Probate Division. However, it’s most common for it to be referred to simply as “probate court”.

While there is usually no legal requirement to use a probate lawyer, probate is a rather formalistic procedure. One minor omission, one failure to send Great Aunt Maggie a copy of the petition, or a missed deadline, can cause everything to come to a grinding halt or expose everyone to liability.

The death of a family member or friend sometimes tends to bring out the very worst in some people. Experience shows that even in close families there is a tendency to get overly emotional about relatively trivial matters at the time of a loved one’s death, such as who gets the iron frying pan and who gets the kettle. Such minor matters or any delays or inconveniences can be upsetting, pose issues of fairness, and create unfounded suspicion among family members. Thus, it generally is a very good idea to “let a lawyer do it”.

Similar to the answer above, it is very difficult to handle the liquidation of properties, real estate, etc. without a credible, trustorthy realtor. This is where Nathan can take the lead. Aside from the connecting the legal, contractor & financial dots... Nathan will lead you through the process of selling any properties/homes in accordance with your wishes. 

If someone files an objection to the Will or produces another Will, what is known as a “Will contest” has begun. While Will contests are not that rare, and while few people actually win one, they can be extraordinarily costly and create incredible delays.

It’s also important to know that the requirements for contesting a will require a person to have “standing” to mount a contest.  Even though you feel your next-door neighbor’s children ignored her and treated her badly, that does not give you the right to contest her will.  If a person has proper standing to contest a will (ex: a child who was cut out of the will by an angry parent, or even by a kindly parent who felt that the local charity, not his children, should get his assets) that person would have standing to bring a “will contest”. If a will gives one sibling 2/3rds of a parent’s estate and the other 1/3rd, the one receiving less has standing to bring a will contest. Similarly, if a later will is less favorable to someone than an earlier will, or no will at all, that person has standing. A will contest sometimes is launched to have a different person, bank or trust company serve as Personal Representative for the estate, or as a trustee of Trusts created by the will.