What Does the Probate Process Entail?

Probate is the legal procedure that involves validating a deceased individual’s Last Will and Testament, examining their assets, settling their outstanding debts and taxes, and distributing the remaining assets to the designated beneficiaries. After a person dies, the court will appoint an executor to administer the probate process. In the absence of a Last Will and Testament, the court will appoint a state administrator to handle probate. Probate law varies by state, but there are steps in the process that are common.

Appointing the Executor

First, an executor is appointed, normally the person named in the will. It’s the executor’s responsibility to initiate the probate process. An executor can be a family member, a financial advisor, or any person the deceased deemed capable of administering their estate. The executor files the will with the probate court, which initiates the probate process. A court officially appoints the executor, giving the executor legal authority to act on the deceased’s behalf.

The Role of the Executor

The executor’s function is to locate and oversee all of the estate’s assets and to determine their values. The majority of the deceased’s assets are subject to the probate court, where the deceased lived at the time of their death. Real estate is an exception, and probate may extend to any county where the real estate is located.

The executor will pay any taxes and debts owed by the deceased from the estate. A notice of death is published, and creditors are given a limited time to make claims against the estate for any money owed to them. If the executor rejects the claim, the creditor may take them to court, where a probate judge will determine the debt’s validity. The executor is responsible for filing the deceased’s final personal income tax returns. The executor’s last task is to distribute what remains of the estate to the beneficiaries.

Not Everything Goes Through Probate

Probate is required for any asset or account that does not have a joint owner or beneficiary named. If a joint owner or beneficiary is named, then titles or ownership change automatically, and probate becomes unnecessary.

Dying Intestate

If a person dies without a will, they are said to have died intestate. An estate can also be deemed intestate if the will presented to the court is found to be invalid. The decedent’s assets follow a similar probate process, beginning with the appointment of an administrator. An administrator functions like an executor, receiving all legal claims against the estate, paying outstanding debts and the decedent’s taxes.

Administrators must also seek out legal heirs, including surviving spouses, parents, and children. The probate court will determine the distribution of the estate among its legal heirs. In the absence of any family or other heirs, the remaining assets go to the state.

The more complex or contested an estate is, the longer the probate process can take to finalize. The longer the process, the higher the cost. Probate without a will typically costs more than probate with a valid Last Will and Testament, but neither scenario is inexpensive. Probate court files an estate’s assets as a matter of public record, so if you want to keep your estate private, it’s best to pursue other estate planning options, such as a trust.

We hope you enjoyed this article. If you would like to discuss a personal legal matter, we would be happy to talk. Please contact our Heber Springs, Arkansas Office at (501) 365-3934.