Understanding The Probate Process


The term probate refers to the review and validation of an individual’s will. However, it also refers to administering a decedent’s estate without a will, meaning the court will make judgments based on the decisions of an executor of the estate. While the process is not always necessary, it is essential if an estate is of particularly high value.

The Probate Process

At its most fundamental level, probate is the division and distribution of estate assets. Of course, when a will exists, the process is easier, but things can become complicated without the document, especially if there is division within the family. 

The court or the will dictates an executor; this individual is responsible for obeying the will or fairly divvying up the assets. The first order of business for the executor is the settling of any existing liabilities or debts.

Aside from overseeing the payment of any debts, the executor must also locate and oversee the transfer of all assets. They also must estimate the estate’s value by using the date of death value or the IRCs alternate valuation date. Finally, they must file the decedent’s final income tax return.

Sometimes, a decedent’s estate will be deemed insolvent, meaning debts outweigh estate value. If that is the case, the executor or administrator will often choose not to progress through probate.

When a Will Isn’t Present

While the probate process is similar even without a will, there are some differences. However, the primary difference comes when there are no heirs to the estate. If no heirs exist, the estate is transferred to the state. The process will then vary from case to case when it is transferred to the state, but in some cases can take a lengthy amount of time to eventually settle the estate. 

Is Probate Necessary

Whether probate is necessary will depend on the state and the estate. A high-value estate will often undergo some form of the probate process, but smart investors can often limit the process by using trusts and other asset protection devices. 

If probate is needed, the distribution of property can take a long time, especially if family members contest the will. If you are trying to prepare your estate and get your affairs in order, it may be beneficial to speak with an experienced probate lawyer. These professionals can offer insight and advice about the probate process and how you can avoid some of the many common pitfalls.