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Understanding the Probate Process – Part One

Picture of a will

If you have been asked or named to serve as an executor or personal representative of the estate of a loved one, the first thing you want to do is hire an experienced attorney. The probate process can be complicated and intimidating, with many forms to be completed and filed. It’s not something you want to handle on your own. However, a basic understanding of the probate process can help you work with your lawyer to successfully complete the process in a timely manner.

What Is Probate?

The probate process is designed to ensure the orderly distribution of a person’s estate in accordance with that person’s stated wishes. Those wishes are customarily set forth in a will, but may also be documented in a trust. Only those assets that a person owns at the time of his or her death are subject to the probate process. For example, if you’ve created a trust during your lifetime and transferred property to that trust, you no longer own the property (the trust does) and it’s not subject to probate upon your death. Likewise, property that you have gifted during your lifetime, or property that you own jointly with others, does not go through probate.

Initiating the Probate Process

When you prepare a will, one of the provisions customarily identifies who will serve as executor. It’s both good form and good practice to notify the proposed executor before your will is drawn, and learn if the executor is will to fill that role. A person cannot be compelled to serve as personal representative or executor—if the named executor is unavailable or unwilling, the court will have to appoint an executor.

To initiate the probate process, you must have the court officially appoint an administrator/executor. Typically, this is done by filing a request with the probate court in the county in which the decedent resided at the time of death. Once named as executor, a person will be required to:

  • Request that the estate be admitted to probate—this typically requires that you file an original copy of a will, along with a death certificate
  • Publish notice according to court rules—this is intended to inform potential heirs and creditors of the intention to settle the estate
  • Post a bond to protect the estate
  • Establish the validity of the will

Contact the Law Office of Jared M. Lans

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