Probate Part 2 of 4

Probate Process 2

Unless the will is contested, there is very little court interaction during probate – mostly just bureaucratic paperwork and filing. Small estates have a simpler probate process, even if they contain valuable assets. It may be helpful to consult a probate specialist to aid in navigating the legal process.

Each state has its own probate process. The Uniform Probate Code, a set of guidelines written by a group of national experts, has been adopted in some states and makes the processes smoother and easier (to see if your state has, click here). If the deceased has real estate in more than one county of the state, it can all be handled in one county, but if the real estate is in different states, different probate processes may be needed.

To begin, a petition or appeal (the terminology differs by state) must be made to the courts to appoint an executor or administrator of the estate. This includes filing the appeal or application, the death certificate and the will. A court hearing will then be set so the executor can be challenged if others desire to do so or the will can be contested. Before the hearing, the executor must notify all beneficiaries, heirs, and creditors of the estate and post an ad in the local news paper announcing the court date and show proof to the court that they have done so. This ensures all interested parties are notified of the event and can attend if desired.

Once chosen, the executor or administrator receives a document called letters of testamentary or letters of administration, again the terminology differs state to state, which gives them the legal power to distribute the estate. If they live in another state, they may need to file a document with the court to appoint a local resident as their “agent”, then that person can accept legal papers on the executor’s behalf and assist them in local proceedings. In the event that no executor is chosen or no one wishes to take on the role, an individual not connected to the deceased can be hired to be administrator of the estate. Financial institutions, brokerage companies, stock transfer agents, and government agencies often require letters of administration before they will communicate or do business with a representative of a deceased person. Any property that is part of the estate cannot be sold until the executor has letters given them by probate court.

Next, the executor may need to post a bond on the estate. This provides insurance (up to a certain dollar amount) against any losses to the estate the executor might cause during the probate process. The executor must also prove the validity of the will (if one exists) by providing a statement from one of the witnesses to the will. Once the will is proven, the executor can manage the estate as long as all required legal documents have be filed.

Stay with us! Our next blog will concentrate on management and closing of the estate during the probate process.