What Does Probate Involve?

Probate is the legal process of administering the property and assets left by someone when they die (the decedent). The probate process also oversees the payment of claims, debts, taxes and other related expense against the estate are all paid according to the law. Probate property is defined as property in the decedent's name alone and is distributed by the directions of the will or according to the law. The probate proceedings take place in the county where the decedent lived and owned the property. If the decedent also owned property in another state, additional probate court proceedings may be required in that state.

Some property owned by the decedent may not be considered in the probate process and is not known as probate property. Any property held by the decedent and another person jointly, any property held in a trust, any bank or other accounts that are "payable on death," or "transfer on death" to a named beneficiary, and any insurance and retirement benefits that have a named beneficiary are not considered probate property. However, all property is considered estate property and is still subject to federal or state taxes, whether or not it is probate property.

The probate process is necessary to legally give the executor or personal representative of the estate the right to handle the decedent's probate assets. The process gives the executor the duty of safeguarding the assets and property of the estate for the benefit of the heirs and beneficiaries. Probate then allows for the creditors against the estate to be able to collect any debts owed by the decedents before the remaining assets are distributed to the heirs. There are costs in the administration of this sometimes lengthy process that must be paid from the estate also.

What are the duties required by probate? The first task of the probate court is to appoint a person to administer the estate. This person is called the personal representative or administrator, or if so named in a will, the executor. The executor or administrator can be a single person, a trust company, or a bank.

The executor or administrator has many tasks to complete in the probate process. He or she must care for all of the property and assets of the decedent. He or she must receive any payments due to the estate from interest, income, or dividends of any sort and then collect and legitimize any debts due to the estate. Then, all names, addresses, and pertinent information about the heirs and beneficiaries must be gathered. The executor or administrator must then collect and validate any debts against the estate and pay the outstanding debts, which includes filing state and estate tax returns and paying the taxes for same. The last task of the administrator is to distribute the remaining assets to the heirs and beneficiaries according to the will and the laws of the court.

The probate court judge and the probate court task supervises the entire process. Each separate action requires that the appropriate paperwork and numerous documents be filed in a timely and lawful way. Each step of the process can be tricky and time consuming. As an executor or personal administrator, he or she may want to consult an attorney specializing in probate matters and a certified public accountant to handle the tax issues.