Why Do You Probate a Will?

By Laura Wallace Henderson

Making out a will doesn’t eliminate the need for court proceedings after your death. A legal process known as probate provides a formal means of supervision for the dissolution of your estate. This process ensures the payment of debts and the correct distribution of assets. An executor has the right to hire an attorney at the expense of the estate to assist with the probate proceedings.

Making out a will doesn’t eliminate the need for court proceedings after your death. A legal process known as probate provides a formal means of supervision for the dissolution of your estate. This process ensures the payment of debts and the correct distribution of assets. An executor has the right to hire an attorney at the expense of the estate to assist with the probate proceedings.

Purpose

Probate serves a number of purposes in settling an estate. This legal process can help prevent fraud and protect creditors, as well as ensure beneficiaries receive the assets allotted to them by the provisions in the will. The public records generated through probate proceedings allow interested parties to review the actions of the estate executor or administrator. An individual who possesses no assets at the time of death, or who has a living trust that provides for all assets, may avoid probate in some states. Certain assets, such as jointly owned real estate and retirement accounts, may pass outside the probate process.

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Submitting the Will

An initial step in starting the probate proceedings involves submitting the decedent’s will and certified death certificate to the court. Initiating the probate proceedings starts the clock on the time limitations creditors have to file claims against the estate. After the statute of limitations passes, creditors can no longer seek payment. The court may also require the executor to supply the names and addresses of a surviving spouse and other beneficiaries. This information helps ensure that all beneficiaries receive notice of important court proceedings.

Court Proceedings

During the probate process, the court officially appoints an individual to act as the administrator or executor, normally the person named in the will. The court may provide documentation to the executor that authorizes him or her to represent the estate in financial transaction. While the executor administers the estate, the court supervises the division of assets to ensure that distribution follows the provisions of the will.

Executor’s Responsibilities

During the probate proceedings, the executor performs a variety of actions that may include paying off the decedent’s debts, compiling an inventory of assets and personal belongings, paying estate taxes, and liquidating financial investments and real estate assets. The executor must follow the instructions in the will, as well as the court’s orders in compiling inventories and distributing contributions to charities and personal belongings to beneficiaries.

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Why Is Probate Necessary if There Is a Will?

References

Related articles

What Is the Responsibility of the Executor of a Will?

Planning ahead includes examining many aspects of your future, such as retirement and investments. Responsible planning also involves considering the division of your assets upon your death. Your will allows you to provide instructions for managing your estate and distributing your belongings. Your will also provides a method of designating your choice of guardian for your minor children or pets.

What Happens if an Executor Refuses to Probate?

An executor has a duty to act in the best interest of the estate, and refusing to probate an estate may be cause for the executor to be removed. State probate laws differ, but the Uniform Probate Code, approved by the National Conference of Commissioners On Uniform State Laws, provides a general framework for handling an executor refusing to move the probate process along. In addition to removal, an executor may be held personally liable for breaching his fiduciary duty to the probate estate.

Beneficiary Vs. Personal Representative

The death of a loved one is always a difficult time for family and friends. As such, a solid understanding of the probate process, which is the legal process of administering an estate, and the parties involved, helps the process move along smoothly and keeps unnecessarily stressful situations at bay. Two important players in estate administration include the beneficiary and the personal representative. While these two players have vastly different responsibilities, they are firmly connected to each other throughout the entire probate process.

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