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The Probate Process: Turning Your Will Into Reality

Your will isn't activated until it goes through probate—the legal process that makes sure your wishes are followed.

Here's a guide to what that involves.

Creating a will helps prevent disputes among relatives over your estate. A will outlines your final wishes but having instructions isn't always enough—especially if you're not around to enforce them. Recognizing this, British lawmakers established probate courts centuries ago to ensure wills are executed as intended. This practice was adopted into the American legal system, where probate remains essential. Probate is the legal process initiated after death to approve the transfer of assets, with specific requirements varying by state.

Probate tends to be simpler and less costly for small estates or when a will is not contested. Typically, the probate process can last from six months up to two years, depending largely on the complexity of the estate and the laws of the state where the decedent resided. Probate usually occurs in the county court of the decedent’s last legal residence. If the deceased owned property in different states, separate probate proceedings might be necessary in each state.

Here is a basic guide to what happens in a typical probate case

Preparing the will for probate

Most states mandate the prompt location and retrieval of the decedent's most recent valid will after death. Locating the latest signed paper will can often be challenging. However, if the will was prepared and stored on Wills.com, retrieving the latest valid version is straightforward. Beneficiaries can conveniently access a stored executed will; if you haven't received an email notification yet, please contact our customer success team at [email protected] for assistance.

Filling the will and other preliminary documents

Upon obtaining the decedent's latest valid will, it must be filed promptly with the clerk of the local probate court. Alongside this, petitions to open probate and appoint the executor are filed. Once the initial court hearing date is set, individuals named in the will or those with a potential interest in the estate are duly notified. This step ensures that all relevant parties are involved in the probate process from the beginning.

First court heading

This initial court hearing assesses the validity of the will and confirms the executor named within it. If approved, the court issues letters of administration or testamentary, empowering the executor to manage the estate's affairs. This includes closing the decedent's accounts, selling property, and opening new accounts in the estate’s name. Note that some states may require the executor to post a surety bond to safeguard the estate against mismanagement or embezzlement.

Executor gets to work

The executor initiates their role by creating an inventory of the estate's assets, which might already be listed in the Testator's estate planning documents. It's important to check these documents for a pre-prepared asset inventory that can simplify the process. All asset values must be appraised and reported to the probate court. Additionally, the executor notifies all potential creditors of the decedent's passing, establishing a deadline for them to file claims. After this deadline, the executor evaluates the claims and decides on their validity. To settle these claims, the executor may need to liquidate assets, such as real estate, from the estate.

Taxes and final reports

The executor is responsible for filing the estate's tax returns and settling any owed taxes. Following this, a final accounting report is prepared, detailing all expenditures and remaining assets within the estate. This report is submitted to the court together with a final petition for the distribution of the estate's assets. In preparation for the final court hearing, the executor actively works to locate all beneficiaries and relevant parties, informing them about the upcoming proceedings and their potential implications on their interests. This step ensures that all those entitled or interested are aware and can participate in the final distribution process.

Final Court Hearing

At the final court hearing, the judge reviews the financial records compiled by the executor. The judge then inquires if there are any objections to closing the estate and distributing its assets. If no significant objections are raised that would warrant further delay, the judge issues a judgment for the final distribution of the estate. This marks the formal conclusion of the probate process, allowing the executor to proceed with distributing the assets according to the will.

Distribution of Assets

The executor completes the process by distributing the assets as directed by the will. This includes issuing payments and delivering valuables to the entitled beneficiaries. Once all assets are distributed, the court finalizes the proceedings by issuing a discharge of estate order, effectively closing the estate's accounts. With this, the probate process is concluded, marking the end of legal responsibilities and the formal closure of the estate.

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