Probate Court Overview

If you are wondering, “What is probate court?” then it is a potentially time-consuming legal process that occurs when a decedent’s will is contested by a family member (whether included in the will or not) or by someone else. Sometimes, a will goes through the probate process because the will meets certain qualifications that require it to go through such as process, such as the monetary amount the property included in the will is worth. Wills and probate court can be a confusing process, so the following article will break down the probate process and when, why and how a will would need to be entered into it. For more information on probate court, continue reading the sections below.

What is Probate Court?

“What is probate court?” is a common question many people ask themselves when dealing with the death of a loved one. Before you understand what a probate court is, you must first understand what probate means. Probate is the legal process a will goes through when the testator, or creator of the will, has passed away to determine its validity. The probate process will simply determine if a will is valid, officially appoints the will executor, as stated in the will, and allows the members of the decedent’s family to voice any concerns they may have about any part of the will or the beneficiaries named in it. Probate court is where all of this happens. It is important to know that contesting a will can increase the amount of time it takes to complete the probate process and distribute the property and assets named in the will to their rightful beneficiaries.

The Probate Process

To begin the probate process, you will first need to petition the court to name you as the executor. To go through the probate of a will, it may be useful to hire an experienced probate lawyer to begin the process of probate, as it can be complicated, although this is not necessary. If the decedent left a will, make sure the person named as the will executor is the person petitioning the court. If this is not you, contact the person named in the will. Before you can begin the probate process, you will need to file a petition, or application. Probate courts in different states and jurisdiction may have various requirements for this document. However, every state will require that you submit the original will and a certificate of death along with the application. Beginning the probate process may also require you to pay a fee, the amount of which will vary depending on where you file for probate.

The second step in the probate process is for either you or your lawyer to contact everyone named in the decedent’s will to inform them of the decedent’s passing and of the probate hearing.

The third step in settling the probate of a will is the hearing. This part of the probate process usually does not take place until several weeks after the process was initially set in motion. It is where a judge will determine if you are fit to be the executor and anyone else who attends, and who has the right to, may contest your appointment as the executor. The validity of the will is also determined. This step of the probate of a will process usually does not actually take that long unless someone contests the will.

Once you have been named the executor, the fourth step in the probate process is to manage the estate of the decedent. You will be expected to file tax returns for the estate and pay off any debts it may still have. This is typically the most time-consuming part of the process, so expect to spend a lot of time sorting through everything that was left behind. Learn more about what should be considered by downloading our free online guide.

The fifth step in the probate process is to file a report with the court that states everything you have done with the estate after you have paid off any debts and are current on the estate’s taxes. The final step in the probate of a will can begin once you have completed this step.

The sixth and final step in the probate process is to divide up the property and assets as stated in the will. Essentially, you will need to make sure that the correct property goes to the correct beneficiary.

Does a Will Always Need to Go Through the Probate Process?

The probate process is not required in order for a will to be carried out. It will vary from state to state as to whether a decedent’s will needs to go through probate, so you may want to speak to a probate attorney about whether your will would qualify for probate and what those qualifications are. Deciding factors can include the amount of money your estate is worth. The probate of a will is not necessary if the will’s contents are valued at less than a certain amount. Probate court may be necessary, however, depending on the type of property listed in the will.

For more information probate process, take a look at our free and comprehensive guide.


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