Planning the future for your loved ones

The Probate Process

Since probate is an important issue in estate planning, you will see the word probate come up a lot. Information about the probate process will be needed to help you better understand some of the details of estate planning.

Probate is simply the legal process where the court or a judge verifies your will and other legal documents connected to your estate. This allows your assets to be handled as stated in your will or any trust subject to probate oversight, such as a personal trust and trusts created in your will. The court will also supervise the transferring of your estate, and makes sure your debts are paid. Probate court may also be known as Surrogate’s Court, Orphan’s Court or Chancery Court.

Depending on the size and complexity of your estate, the probate process can be time-consuming and expensive.

The court will need to validate your will or applicable trust before any other steps are taken, so it’s crucial to make sure they are correct.

After your death your trustee or an heir/beneficiary, depending on your state, needs to file a petition for probate with the Probate Court along with a copy of your will.

It is important to be aware that all court proceedings will become part of the Public Record, so others will be able to see the content of your will or any trust in your name.

The probate process may vary from state to state and will affect how you plan your estate. Some states allow you to file your will with the probate court before you die, but it is not required. All wills need to go through the probate process.

Assets in different states, such as property, are subject to the probate process in that state.

 

If your will or trust is validated, the court will issue an order appointing someone to represent the estate, usually your trustee or personal representative.

  • The court will then schedule and give notice of the court hearing to all of your heirs and beneficiaries. This is also published in a local newspaper to notify others, such as your creditors, of the time of the proceeding.
  • After this, the process usually involves supervising your executor to ensure that they carry out the wishes specified in the will and pay any creditors. In most cases the beneficiaries are the last to get their share. See Tasks of the Executor.
  • This may or may not require an appearance in court, depending on the size and complexity of your estate.

If your will is not validated, the probate process will proceed as if you had no will, beginning with designating an administrator to manage your estate. A relative or friend can request to be named as the administrator.

If you are concerned about the details of your estate getting out or saving your executor and beneficiaries time and money, there may be ways to protect some or all of your assets from the probate process. Below is a list of the probate status of your various assets and those that can be converted to non-probate assets.