What Is Probate?

 By Mark E. Henze

         Probate is a legal court process that is used to monitor the proper transfer of property and the payment of debts upon a person’s death. In general, it consists of:

         1. Proving in court that a deceased person's Will is valid (usually a routine is the Will is done properly)

         2. Locating, disclosing and inventorying the deceased person's property and debts.

         3. Getting property appraised and sold (if desired)

         4. Determining any complaints, arguments or contests regarding the property and the estate’s administration and distribution of the property.

         5. Paying the decedent’s remaining debts and taxes,

         6. Distributing the remaining property either in accordance with the Will or state intestacy laws (if there's no will), and

         7. Letting the Court know that the proper administration has been completed

        Typically, probate involves the preparation of the initial Petition and later paperwork and, if necessary court hearings and appearances by lawyers. The lawyers and court fees are paid from estate property. The estate will also reimburse the Personal Administrator for any costs or expenses that he/she incurs, including any costs and attorney fees paid throughout the probate case.

        Procedurally, after a death, the person named in the Will as Personal Representative will file papers in the local probate court. The Personal Representative proves the validity of the will and presents the court with lists of the decedent’s property, debts, and heirs. Then, relatives and creditors are officially notified of the death and the opening of the probate case.

        The Personal Representative must then find, secure, and manage the estate assets during the probate process, which commonly takes a few months to a year or more. Depending on the contents of the will, and the amount of the decedent’s debts (medical, loans, taxes, etc) the Personal Representative may have to decide whether or not to sell the real estate, securities, or other property of the estate. For example, if the will makes a number of cash gifts but the estate consists mostly of valuable artwork, that art collection might have to be appraised and sold to produce the needed cash. Or, if the decedent has many outstanding debts, the Personal Representative might have to sell property to pay these debts before any funds are distributed to heirs.

        Eventually, after following state law concerning which expenses and debts have priority and must be paid first, if there are any estate assets left over, they will then be distributed to the heirs in accordance with the directions of the Will or state descent laws (if there is no Will).