What is the Typical Probate Process?
The typical probate process begins with a person filing a petition for probate, which is the process of determining whether a decedent’s will is valid. A decedent is the person who died. It also means gathering the assets of a decedent, paying any valid debts left by the decedent, determining the rightful heirs, and distributing the assets of the estate in accordance with a valid will. If there is no valid will, then the law will control the distribution of the property among rightful beneficiaries. The petition for probate usually includes a request for the appointment of a personal representative, who is the person in charge of performing the tasks of the probate process.
Most jurisdictions allow the probate process to be formal or informal. Formal means the court will supervise the process; informal means there will be no court supervision. Court supervision usually is necessary only when there are disputes concerning the probate. Disputes often arise concerning the validity of a will. In these cases, a court will conduct hearings to listen to evidence and determine whether a will is valid.
If a decedent did not leave a will, or if a court determines that a will is not valid, then the probate process will move forward intestate. This means the court will ensure distribution of the decedent’s property according to a jurisdiction’s inheritance statutes for people who die without a will. To do this, the court will appoint an executor for the estate and the probate will occur formally. The executor will be responsible for gathering property, paying debts and distributing property pursuant to applicable laws. The court will also require that the executor or personal representative provide notice of the probate process to all interested parties, including creditors.
The purpose of notice in the probate process is to afford the decedent's creditors an opportunity to make claims for unpaid debts. Creditors must make these claims within a designated time. Creditors failing to submit claims within the designated time will forfeit such claims. The law usually requires the executor or personal representative to send direct notice to known creditors by mail. For unknown creditors, jurisdictions will usually require notice by publication in a local newspaper.
Personal representatives or executors are able to perform their duties when the court grants a letter of administration or an order of administration. This document empowers the authorized individual to gather the assets of a decedent and to pay debts as part of the probate process. The court will grant this document after it determines whether there is a valid will and hears any challenges. If there is a valid will that designates a personal representative, the court will honor the designation and issue the letter to that person. If there is no will, the court will grant the letter to an executor in accordance with the law.
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