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A. Is a court proceeding

A. “Probate ” is a court proceeding

It is here that final debts are settled, and legal title to property is formally passed from the decedent to his/her heirs. It is initiated in the county of the decedent’s legal residence at death. Usually, the first step is taken by the person named as Executor, or other interested person who has the original Will.

This person should file (with or without the help of a lawyer) a Petition for Probate of Will and Appointment of Executor, or something similar. Some states give out pre-printed forms for this, so people can do at least that much themselves. If there is no Will, somebody must come forward and ask the court to be appointed as Administrator, instead of an Executor. Most often, this is the surviving spouse or an adult child, although it might also be another interested party.

The “probate estate” simply refers to any property subject to the authority of the probate court. Assets disposed of outside the probate process are part of the “non-probate estate.”

“Probate Court” is a lower level court in the state system, but it might be referred to by another name, e.g., “surrogate court.” The clerk of your county court system can help you find the right office. If the estate is small, keep in mind that most states have streamlined procedures that can save the Executor time and legal fees. Details of the probate process vary greatly by locality, but the following explanation should be helpful.

After the document’s genuineness and validity are established, the court issues an order “admitting the Will to probate,” or some similar proclamation that the Will is “official.” It is then recorded by the County Clerk. Usually, this is a routine matter. State law might then require public notice of the probate proceeding by the publication of newspaper ads.

Occasionally, however, there might be an objection. For example, somebody might claim that the document being offered to the court is actually a forgery. Or, more commonly, the document being objected to has been revoked in a later Will. Whatever the objection or claim, it must be brought to the judge’s attention. The FBI does not investigate these cases; whoever has a gripe must go to court.

TIP: As a general rule of law – in all areas – if you snooze very long before asserting your claim or rights, they may be lost.

The judge’s order also formally appoints the Executor. This appointment confers on him full authority to handle the decedent’s accounts. The Executor is given a certified court document that will be recognized by financial institutions and others. This is often called the “Letters of Administration,” or “Letters Testamentary.”

Once probated, a Will is a public record, and so is the final settlement and inventory of estate property. As such, these papers may be viewed by anyone. This is a fact of great concern to some, but to others, none at all.

There is a common misconception that a Will can be drafted in a manner to completely avoid the probate process. This is not possible – but read on. As mentioned above, there are usually streamlined – and in some places highly expedited – procedures set up by the local court system to handle the settlement of small estates, or even larger ones, if uncomplicated.

In a few states, the procedure for small estates is so “expedited” that a trip to probate court might not even be needed – but that is because of the small size of the estate, not because of anything about the way the Will was written. Although there are other ways to avoid probate (discussed later), all Wills in almost every state are subject to probate. But if the situation is not complicated, and people are not protesting and fighting with each other, the process is simply not as bad as many people fear.

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