What Happens During Probate? (Part 1)

what happens during probate

Like most other legal proceedings, the probate process can be intimidating to individuals who have never gone through the process before. Some executors may be “scared out of office” when they realize that they have obligations to the decedent’s heirs and beneficiaries as well as to the court. Probate need not be a frightening goblin of a process, however. Any angst or anxiety you feel after learning you have been designated as a person’s executor or administrator can be relieved by simply taking the time to learn about the probate process.

Initiating Probate by Filing a Petition

The probate process begins when a decedent dies (with or without a will) and an individual steps forward with or without the decedent’s will (as the case may be) and files a petition to probate the decedent’s estate. The petition can be found at the courthouse if the person is unable to procure a copy of the necessary petition online. If the decedent died testate (that is, with a will), the individual will present the will to the court so that the court may declare the will to be valid and enforceable – or to find otherwise, if the evidence so shows.

During this process, the person who presents him- or herself to the court will typically also request that the court appoint him or her as personal representative (executor) over the decedent’s estate. If the person is the same individual named as executor in the will, or if the person appears to be suited to be the personal representative of the decedent’s estate, then the court will appoint the individual to be the representative of the estate.

Issuance of Letters of Administration

what happens during probate

At the same time as the person is appointed to be the personal representative of the estate, the court will also issue Letters of Administration to the representative. These “letters” are formal legal documents informing companies and financial institutions that the person has been appointed to represent the estate in winding up the decedent’s affairs. Without these letters, the person would be unable to access financial records and close bank accounts in the decedent’s name.

Notify Creditors, Heirs, and Beneficiaries

Once an appointment is made, the representative must make creditors of the decedent aware of the decedent’s passing and provide them with an opportunity to present any claims they may have against the decedent’s estate. To provide notice, the representative will typically publish a formal legal notice in the newspaper of the locale in which the decedent died and send a copy of this notice to each creditor that the representative can identify. The newly-appointed personal representative must also provide notice that he or she has been appointed as representative by the court within thirty days of the appointment.

Complete an Inventory on the Estate’s Property

The purpose of an inventory is to identify for all heirs and beneficiaries what property the estate has in its possession, how it is being held (i.e., is it community property acquired during the decedent’s marriage) and the approximate value of the estate’s property. Although the representative need not take actual physical control of the estate’s property at this time (which may not be feasible or even advisable if it is being possessed by the individual(s) who would possess the property under the terms of the will), the representative can do so and safeguard the asset or property until distribution to the appropriate heir or beneficiary.

At this point, the representative has taken the initial steps necessary to probate an individual’s estate. The remainder of the steps focus on management and distribution of the decedent’s property.  Find out more about what happens during probate by contacting the experienced attorneys at Leighton & Abdo, PLLC.