What is Probate? Part 1

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What is Probate?

For many of us, the thought of having a will created according to the law sums up what we have to do to put our affairs in order in the event that we pass away.  However, there is a legal process – known as the probate process – that takes place for those we leave behind.

Probate – What does it mean, really?

The probate process is the legal process that determines who your personal representative is, how your will is declared legal, how your assets will pay for outstanding debts, and, in the end, how to properly distribute your assets according to your will or, if you do not have any will, the law.

The following are a few answers to pertinent questions about how to Probate an Estate:

How do I become a personal representative of the deceased?

If you were named in the will, then you have the choice to decline or serve as the personal representative for the legal probate process. However, if you decline or resign in the process of being the personal representative, then the alternate named in the will assumes the position. If a person dies without a will, the court will appoint someone to the position.


What does a personal representative do in the probate process?

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The personal representative is in charge of the orderly administration of the probate estate, and is accountable to beneficiaries and the courts.  This person also receives compensation for handling the process, but is also responsible for neglect of mismanagement of the estate, if proven.

The main tasks of the personal representative are as follows:

• Determine if there are any probate assets, by identifying, gathering, and inventorying the assets of the deceased.

• Receive all payments due to the estate, and setting up a checking account for use of the estate.

• Pay all debts, file all taxes, and sort through all the claims to the estate for validity.

• Complete all necessary paperwork for the estate concerning due payments, debts and asset valuation.

• Distribute the estate according to the stipulations in the will, or enforce the state succession laws strictly if there is no will.

Once all this is done, the personal representative can then close the probate process.

What does the will (if there is one) go through in a probate process?


The following are steps that a will goes through as due legal process and common law requires:

• If a will exists, then the original copy of the will must be filed with the court.

• Before a personal representative can be appointed, the Petition for Probate must first be published in the local newspaper, after which the Personal Representative can file for a Petition for Probate of the Estate.

• Creditors can then file claims against the estate for four months after publication, during which time the personal representative should identify, collect, and organize all assets of the estate. The representative also has to keep all assets in good condition, and this includes maintaining insurance coverage and collecting rent, for example. The representative can also liquidate assets as necessary.

• Once all claims are addressed, all assets are collected, and any contest to the will (if there is any) has been addressed, the remaining assets can then be distributed according to the will or state law.

To read further into Part II click here More