What Is Probate?


Probate is the process for proving to a court that the document that is being presented is the deceased’s last will and testament. You have to prove that the deceased knew what it was and signed it under his own free will at a time he was mentally competent in front of witnesses. It then involve getting the court to give you authority to gather the assets, pay the deceased’s obligations and distribute the assets to the beneficiaries named in the will.

Each state has its own unique procedures approving the will and handling what is called the deceased’s estate. Although states use many different names for the court in which the process occurs some call it the probate court, some call it the surrogate’s court, others call it the orphan’s court while most call it the probate section of the superior or County Court.

The states generally do the same thing. The document is filed in court and the court requires that notice be given to everyone who would be entitled to inherit something from the deceased. If it turns out the document is not a valid will this gives them the opportunity to object. Possible objections might include claiming that the document is a forgery, it wasn’t signed by the defendant or it wasn’t properly witnessed or that the deceased was mentally incompetent or subjected to undue influence. It’s relatively rare that someone with the proper standing to object comes into court and objects to the will. In that case the Probate Court typically makes a legal finding to the effect that the will was proved or not proved and that the document is or is not the deceased’s last will.

what is probate?

Within about six weeks the will is normally, officially accepted for probate and the court issues formal legal documents appointing the person named in the will as executor or personal representative with full legal power and authority to administer the deceased’s probate estate including paying the deceased bills and taxes and beginning to distribute the deceased’s estate to a named beneficiaries. If the deceased left minor children especially if the other parent is out of the picture the probate court judge typically also appoints the person’s the deceased nominated in the will to be the child’s legal guardian and the Guardian of their property.

If needed court also sets up procedures to safeguard their assets until the children turn 18 or reach such later age as the will sets out. Depending upon what the will says and state law provides the probate court may also require periodic reports to make sure the executor actually has done what the will provides or to require prior approval for extraordinary transactions to protect the interests of the beneficiaries. In short probate is rarely as scary, complicated, time consuming or expensive as many people fear.