When a loved one dies and leaves a last will and testament, there are important steps that must be taken for the will to be probated and its instructions followed out and assets distributed.
The sooner the process is begun, the sooner the assets can be distributed to the beneficiaries named in the will.
What is probate?
Probate is the process of the court accepting the will and putting it into effect. But before the process can be put into motion, the will needs to be located.
Some people keep their will with their important papers at home or in a safe. The attorney who prepared the will may have it or it may have been filed with the probate court for safekeeping.
If there are several wills, the latest one is the one that is valid and should be filed. If there is a codicil to a will (an amendment or addition) this must be filed with it.
How does probate start?
Once the last will is found, it is filed with the court in the county where the person who created the will (called the testator) has died or where he or she last resided. The court that handles wills and trusts in your county is the probate court. This may be a separate court or a division of another court.
The will is filed with the probate court by whomever is in possession of it, usually the executor or a beneficiary (in some states only a beneficiary or heir can file the will, but the executor can force them to do so) and it can be filed at any time after the death of the testator, as long as this is within the time limits set by the state. The will is filed with a petition, asking the court to approve the will and put it into effect. The person named as the executor in the will is in charge of moving the will through the probate process and doing all the work of managing and distributing the assets.
What happens during the probate process?
Once the will has been filed, the court examines it to be sure it has been properly executed (signed and witnessed according to the laws of the state). In most states wills are self-proving, which means that if they appear to be executed validly, they are entered into probate without any trial, evidence or witnesses.
Heirs and beneficiaries are legally notified, which gives them the opportunity for contesting a will they believe is not valid. An inventory of the estate is then created and assets are appraised, so that all assets and debts that belong to the testator can be reported to the court and a value can be placed on the estate. Creditors are notified of the probate process so they can file any claims against the estate. A bank account in the name of the estate is opened. Next, outstanding bills and debts are paid. Taxes, including estate and income taxes, are also paid. Finally, another petition is filed and the remaining assets are distributed to the beneficiaries according to the terms of the will.
How long does probate take?
How quickly the will is probated depends first on how quickly it is filed with the court. The length of time it takes for probate to be completed then depends on a variety of factors. The more valuable the estate and the larger the assets, the longer it may take. An estate with many creditors and bills will also require a longer process. If anyone contests the will, the process will be delayed. Smaller estates with few assets and debts may move more quickly. In most cases, a will is probated and assets distributed within eight to twelve months from the time the will is filed with the court.
Probating a will is a process with many steps, but with attention to detail it can be moved along. Because beneficiaries are paid last, the entire estate must be settled first.