If you find yourself directly involved in the probate of a Will for the first time, you are probably unsure of what to expect. What happens during the probate of a Will depends, to some extent, on what your role in the probate process is. While the basic probate steps are the same for any Will, every probate process is also as unique as the decedent. To give you some idea what to expect, however, let’s look at some common steps involved in the probate of a Will.
What Is Probate?
Before discussing what is involved in the probate process, it helps to have a clear understanding of what probate is and why it is required. Probate is the legal process that follows the death of an individual. Probate is intended to serve several important legal functions, including:
- Authenticating a Last Will and Testament
- Account for, and eventually distributing, the decedent’s assets
- Allowing creditors to file claims
- Ensuring that taxes are paid
Steps Involved in the Probate of a Will
- Identifying and securing assets – once a Last Will and Testament is located, the individual named as the Executor in the Will should begin identifying and securing as many assets owned by the decedent as possible.
- Submitting the Last Will and Testament – as soon as possible following the death of the decedent, the probate process should be initiated. Opening probate requires the Executor to submit a Petition to Probate the estate along with an original copy of the decedent’s Last Will and Testament to the appropriate probate court. Usually, probate occurs in the county in which the decedent was a resident at the time of death.
- Categorizing assets – not all assets are required to go through the probate process. Therefore, the Executor needs to categorize assets before the probate process gets too far underway. Some common examples of non-probate assets include:
- Trust assets
- Life insurance proceeds
- Certain types of jointly held property
- Retirement account funds
- Assets held in an account designated as “Payable on Death (POD)” or “Transfer on Death (TOD)”
- Notifying creditors – known creditors of the decedent can be notified personally; however, unknown creditors must also be notified that probate is underway by publishing notice of the process in a local newspaper.
- Reviewing claims – creditors of the estate are then given a statutory period of time within which they must filed claims against the estate. The Executor must review all claims submitted and either approve or deny the claim. Approved claims are paid out of estate assets. If sufficient liquid assets are not available to pay all creditors, the Executor must sell estate assets to raise the necessary funds.
- Litigating any challenges – if anyone challenges the validity of the Will submitted for probate, the Executor has a duty to defend the Will throughout the ensuing litigation. Probate effectively comes to a standstill until the litigation terminates because the result of the litigation determines how the estate is probated.
- Calculating and paying taxes – all estates are potentially subject to federal gift and estate taxes and may be subject to additional state and/or federal taxes. The Executor must ensure that all tax returns are prepared and filed and that any tax due is paid.
- Distributing assets – only after all other debts have been paid can the Executor distribute the remaining estate assets according to the terms of the decedent’s Last Will and Testament.
Although these are all common steps involved in the probate of a Will, every estate is different and presents a unique set of facts and circumstances. As such, the estate you are involved in could include additional steps to get through the probate process.
Please download our FREE estate planning checklist. If you have additional questions or concerns about probating a Will, contact us at theNorthern California Center for Estate Planning & Elder Law by calling (916)-437-3500 or by filling out our online contact form.