Probate is a legal process which is used by the court of law to determine if the last will and testament of a deceased person is valid or not. The probate process could take a pretty long time to complete. At times it could last for months and even years. During this period, the estate of the deceased person cannot be accessed by his loved ones –heirs and beneficiaries – The probate process is initiated by the executor who files a request of probate to the probate court to begin the process of probate.
Persons involved in probate
There are some persons who are new to the whole probate thing. Probably you were named as an executor in the will of a loved one or you received a notice of probate and you do not know what next to do. Here are some of the persons involved in the probate process.
Executor: The executor is a person who is named in a will. He is named by the testator. The executor could be a relative of the testator, a spouse, parent, sibling attorney, etc. The executor has a truck-load of responsibilities regarding the probate process.
- He is responsible for filing a request to the probate court to initiate the process of probate
- He locates and sends a notice of probate to all the heirs and beneficiaries of the estate
- He is the one to settle all the creditors of the estate. He uses funds from the estate for settling the creditors. It is his duty to make sure that the creditors do not defraud the estate.
- He settles all estate taxes and bills from the estate fund.
- He assembles all the assets of the estate and enlists them
- He distinguishes between probate assets from non-probate assets
Testator: the testator is the deceased person who makes the will. He writes the will to give instructions as to how his assets should be shared among his heir. He makes sure to name an executor in his will. In some cases it is relevant to name a secondary executor in case for one reason or the other the primary executor cannot carry out his duties.
Administrator: if a person dies intestate, the court decides how the person’s assets will be distributed among his heirs. Dying without a will means no beneficiary was named therefore the court will have to appoint someone who will be in charge of the probate process and monitor the distribution of the assets; this person is known as the administrator.
Beneficiaries: a beneficiary to an estate is a person who was named to benefit from the estate of the testator. The beneficiary could be just one person, it could be several persons this depends on what the testator wants. He specifies who his beneficiaries are in his will. He can decide to share his estate among his spouse and children, he can decide to add his parents, a friend, an orphanage home, a disabled person, etc. but if there is no will, the court decides the beneficiaries of the estate based on the state’s law.
Creditors: these are persons who the estate is indebted to. If the testator is unable to pay up his debts before he dies, the creditors normally comes up with claims that the estate owes them. If their claims are true, the executor settles them from the funds of the estate before distributing the remaining assets among the heirs to the estate.
Relevance of probate
- The probate process allows for the passage of assets and titles from the dead person to their loved ones – heirs and beneficiaries-.
- If the estate has creditors which needs settlement, without the probate process, these creditors cannot be paid as there won’t be available funds to settle them. Until the court validates the will through probate, funds remain locked up.
- It makes the estate of the deceased accessible to his heirs and beneficiaries. Without probate the assets of the deceased remains out of reach of does who are supposed to benefit from it.
- The probate process is necessary to authenticate a will. The probate court uses the probate process to ascertain if a will is actually the last will and testament of the testator.
- It is necessary for individuals whose assets are much and there are high chances that their will could be contested.
Question: What happens if a will is not probated?
Answer: If a will is not probated, the deceased person will remain the owner of the assets and these assets cannot be passed down to beneficiaries.
Question: What if a loved one is not satisfied with a will?
Answer: If there is any form of dissatisfaction among the beneficiaries regarding the way the assets are distributed, the person has the right to contest the will in court
A probate attorney serves in a probate court. He represents the interest of the beneficiaries, creditors, executor, etc. in court. Our probate attorneys are always available for consult and hire.