Probate Law

What Happens During Probate?

What Happens During Probate

A probate is a judicial or court process that authenticates a will as being a valid public document to be an authentic and true testament of the deceased.

A lot happens during probate, like locating the deceased assets and paying the final taxes and bills. In this article, we look at the probate process in detail.

Authentication of the will 

Authentication of the will form the core of a probate process. Every state has a law that requires anyone holding a will or a testament to file it with a probate court as soon as they can. Most courts will usually provide forms for completing and submitting your petition.

In most cases, you should apply for a petition to open the probate of an estate when applying for a death certificate.

The court hearing during the authentication process is helpful to ensure that the will is drafted correctly and that there is nobody else with a more recent will. The court may also ask for witnesses to prove that the will presented is a real deal. The court asks the witnesses to sign an affidavit while signing the will.

With a duly signed affidavit, the court is fully satisfied that the will is legitimate and valid. Without an affidavit, the court will ask the witness to sign a sworn statement as proof that they were present when the deceased was signing the will.

Appointment of a personal representative or executor 

In this stage, the court will now appoint an executor or a personal representative that will oversee the probate process and ensure the rule of law is observed.

The court will issue the executor a letter of administration, giving them the go-ahead to engage in transactions on behalf of the estate.

Posting Bond 

Before accepting a letter of administration from the court, the appointed executor may have to post a bond, although this is not mandatory in some wills. In some states, the will beneficiaries have the right to reject the requirement for posting a bond.

However, this may not be the case where the nominated executor resides from a different state or is someone other than the individual nominated on the will.

Location of decedent’s assets 

During the probate process, the executor is responsible for locating and taking possession of the decedent’s assets and protecting them. The location of assets may take some time because some people may die before disclosing all their assets to their family.

Sometimes the deceased may not disclose some assets on the will, and this will take time for the executor to locate.

The executor will do all that is necessary to safeguard all the assets mentioned on the will. For instance, in the case of a real estate property, the executor will ensure that the insurance cover is kept current, and all property taxes are paid on time to avoid losing the property.

Date of Death Value Determination

By using appraisals and account statements, the executor can determine the date of death value for the decedent’s assets. Also, the court may appoint an appraiser to help in death value determination. However, that will depend on the state’s probate laws.

In some cases, the court will require the executor to issue a report showing the assets the decedent owned and their value notation. The executor should also explain how they arrived at the value of each asset.

Paying debts and filing tax returns

After identifying and notifying all creditors that the decedent owed, the court validates the debts, and the executor users the estate funds to pay the debts. The executor clears all the debts, including those incurred when the decedent was ailing.

After clearing all the debts, the executor will file personal income tax returns for the year of death. The executor uses estate funds to pay the taxes.

Distribution of assets to the beneficiaries

Once the executor pays all debts and the taxes, they will now petition the court for a go-ahead to distribute the decedent’s assets to the beneficiaries as specified in the will. The court can only issue a petition if the executor submits a detailed account of all financial transactions involved in the probate process.


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