What Happens When a Will Is in Probate?

by David Montoya

    Probate is the process in which the property of the deceased is divided and administered to his family after death. This process can be streamlined through a will -- a legal document that directs how the deceased, also known as the testator, wants his property to be handled by the courts. The testator will name beneficiaries and the property the beneficiaries will take. During the probate process, the court will do everything in its power to follow the directions and intent of the testator as outlined in the will.

    Probate Property Idenficiation

    The probate property in the testator's estate must be identified and collected for it to be administered by the executor and the probate courts. This includes determining whether or not the testator had a full, undivided interest in property. This is the only type of property that can be probated. Property that the testator only had a partial interest in, such as a house he took in joint tenancy with his wife -- this gives the wife a right to survivorship -- cannot be probated.

    Identifying Beneficiaries

    All beneficiaries listed in the will must be identified. The court will distribute property according to state laws if any of the beneficiaries predeceased the testator or died before the probate process has begun.

    Debt Safisfaction

    Wills normally have a named executor who is responsible for taking care of the estate during the probate process. One of the duties the executor has is to make sure all debts and taxes the estate owes are paid off. Probate property cannot be administered before this happens.

    Income Collection

    The executor must collect all money owed to the estate. That money will then become part of the probated property.

    Dispute Settlement

    The executor must settle all claims against the estate. This includes determining whether a claim is valid and how to settle the dispute if it is not.

    Objections

    The family is given a chance to object to the will. Individual sections of the will may be questioned, or the validity of the entire will can be objected to. Such claims usually include that the testator signed the will under duress or that a particular beneficiary had an undue influence over the testator.

    Disbursement

    The property is finally disbursed after any pending matters have been resolved.

    About the Author

    David Montoya is an attorney who graduated from the UCLA School of Law. He also holds a Master of Arts in American Indian studies. Montoya's writings often cover legal topics such as contract law, estate law, family law and business.