Video – What Is Probate?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Probate is simply the process for proving to the appropriate court that a document is the deceased’s last will and testament and that the deceased knew what it was and signed it under his person, under his own free will, at a time he was mentally competent, and the document was properly witnessed, getting authority from the court to gather the assets, pay the deceased’s obligations, and the distribute the assets to the beneficiaries named in the will.

Each state has its own, often unique, procedures for proving the will and handling what is called the deceased’s estate. Although states use different names for the court in which the process occurs – some call it probate court, some surrogates court, others orphans court, while many call it the probate section of the superior or county court – they generally do the same thing.

The document is filed in court, 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 were not a valid will, giving them the opportunity to object. Possible objections might include claiming the document is a forgery, it wasn’t properly witnessed, or that the deceased was mentally incompetent or subjected to undue influence.

It’s relatively rare that someone with proper standing objects to the document, and the probate court typically makes a legal finding to the effect that it was proved that the document is the deceased’s last will. Within about 6 weeks the will is normally officially accepted for probate and the court issues formal legal documents giving the person named in the will as Executor or Personal Representative full legal power to administer the deceased’s probate estate, including paying the deceased’s bills and taxes, and beginning to distribute the decedent’s estate to the named beneficiaries.

If the deceased left minor children, especially if the other parent is out of the picture, the judge typically appoints the persons the deceased named in the will to be the children’s legal guardian and the guardians of their property, and if needed, sets up procedures to safeguard their assets until they turn 18 or reach such later ages as the will sets out.

Depending upon what the will says and state law provides, the probate court may also requires 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.

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