Probate Overview

If you are considering the creation of an estate plan, one important consideration is often the avoidance of probate. In order to understand why avoiding probate is such an important facet of estate planning, you need to have a firm understanding of what probate is and how the probate process operates.

Probate is the legal process that is often required when someone dies. Although the process may vary somewhat from one state to the next, there are commonalities. Probate begins when someone petitions the court to probate the decedent’s estate and admits the decedent’s Last Will and Testament to the court, if one exists. The court then appoints a personal representative or executor. If the decedent left a will, an executor was likely named in the will. The court must still approve of the nomination. In the absence of a will, the court will appoint someone as personal representative.

The executor or personal representative is then charged with making a complete inventory of the decedent’s assets. All assets must also be valued and an inventory list submitted to the court. Notice of the probate is required to be given to beneficiaries and/or heirs as well as to the public by publications in a local newspaper. Claims can then be made against the estate for debts which are approved or denied by the executor or personal representative. Taxes must also be paid by the estate in some cases. A final accounting is eventually submitted by the executor or personal representative to the court for approval, If no disputed claims or a will contest against the estate have been filed, the court will then release the assets to the beneficiaries or