The Probate Process

The Probate Process

Probate is the process of handling the estate and assets of a person who passes away.  The probate courts make sure that all the outstanding debts of the deceased are paid and that the beneficiaries of the estate get what is left.

The important documents relating to the probate court case are known as the probate records.  The first and most important document relating to the probate case is the will.  The will should list the assets of the estate, who will be the beneficiaries, who will act a a personal representative for the estate, and who will be the guardian for any minor children.  The will has to be legally drawn up with properly witnessed and notarized signatures.

There are many ways to draw up a legal will.  Courts and law firms give away forms for will writing, and today, there are books, CDs, computer software, and e-books dealing with writing wills.  Whichever method you choose to use to write your will, it is a good idea to get a lawyer specializing in wills to look over the final product.

Another important document in the probate process is the proof of assets.  The proof of assets is basically a list of the estate assets, which can include bank accounts, IRAs, stocks, securities, life insurance benefits, property, Social Security benefits, Tax Refunds, and any other item of value owned by the deceased. There are other important administrative papers that are also necessary in the probate process.  One of these is the petition for letters of administration, which is filed with the death certificate.

There is a judge who conducts the probate court proceedings.  With a letter of appointment, he appoints a person as executor of the will who administers the assets and handles the general proceedings.  Sometimes the judge will hold probate hearings and answer questions that are raised about the probate case by issuing written directions or "orders."  For example, the judge will issue an order to pay the deceased's debts and taxes, then divide what's left among the beneficiaries.

The next step in the process is to post a Notice of Administration.  This document is also known as the Notice to Creditors.  The personal representative will give this notice after identifying, appraising, and safeguarding the probate assets, to the local newspaper. This document is published in the newspaper so that anyone, creditors included, can learn of the current status of the estate.  This will allow the creditors to take action if there is a claim to be filed against the account.  The creditor would then file a "Creditor's Claim," which would allow them to get back any money owed by the deceased.  In some states, like Washington, the Notice to the Creditor is optional.

After the creditors have been paid, the personal representative will distribute the remaining assets to the beneficiaries and heirs, who will then sign a document, the "Receipt and Waiver," which says that the beneficiaries received their fair shares of the estate. 

The last step for the personal representative is to submit all of the Receipts and Waivers and a document known as the "Declaration of the Completion of Probate" to the court for final processing. 

Finally, the probate court will declare an order for the transfer of assets and property to the beneficiaries and heirs. 

With this declaration, the probate process is completed.