Probate is a legal process that occurs after a person passes away. It involves the transfer of the assets of the deceased to the beneficiaries and creditors. If there is a will and it names an executor, the executor will be responsible for seeing that the terms are carried out throughout the probate process. The executor must identify and inventory the assets and also have them appraised. This process can take anywhere from a few months to a year. The executor may have to sell vehicles, land, securities, artwork or other property to pay any cash bequests - or pay off any debts left by the deceased. The executor could be a relative or an unrelated person. He or she could ask the lawyer who drew up the will for help with the legal necessities of probate. The cost of the lawyer will be paid directly by the estate of the deceased.
If the deceased did not leave a will, or if an executor is not named in
the will, then the probate court will frequently assign the
responsibility of handling the probate process to a relative; such as
the spouse or child, or to the person who inherits the bulk of the
assets of the deceased. This person is called the administrator. If a
probate proceeding is not required, the court will not appoint an
administrator. Instead, the family members and friends of the deceased
will choose a person to serve as an informal administrator.
The probate process has several phases. The executor or administrator
must prove the validity of the will and deliver it to the local probate
court. The will can be validated with a written statement made under
oath by the two witnesses to the creation of the will. The executor or
administrator must also present the court with information on all of the
property and debts of the deceased and the beneficiaries. Then
creditors are informed of the death of the deceased. Creditors usually
have six months from the notification of the probate to collect any
money that is owed to them.
They must recover the money from the estate and not the heirs. The
estate tries to settle these debts out of the available assets. If any
assets are left, they are distributed to the beneficiaries. If all of
the debts cannot be paid off, then the court decides how to use the
available assets to pay off the debts. The heirs are not legally
obligated to pay off any remaining debts of the estate. If the deceased
did not leave a will, the state laws will decide how the available
assets are distributed to relatives. The heirs and the beneficiaries are
also notified about the probate proceeding. This is the time when
objections to the will are usually made. The objections can be due to
accusations that the will was drawn up while the deceased was mentally
unstable, or that the will is a forgery.
There are situations where probate is not a necessary action. One
situation is when the deceased leaves behind very few possessions which
can be distributed to beneficiaries without any judiciary supervision.
If there is any money account or property that is jointly owned, then
the remaining co-owner will get the money account or property by
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