What Does Probate for a Will Mean?

By Christine Funk, J.D.

What Does Probate for a Will Mean?

By Christine Funk, J.D.

When someone dies without any documents detailing instructions for how to distribute their property, or when someone dies with a will (also referred to as intestate), their estate must go through probate. The process involves several different events, including determining the assets of the estate, identifying outstanding debts, paying taxes, resolving disputes regarding the will (if one existed) and who should inherit, and distribution of assets after all debts are satisfied.

Documents labeled "last will and testament" next to a book entitled "Estate Law"

Probating a Will

As indicated above, those who die without having previously created some sort of estate planning documentation must go through the probate process. When the deceased has left a valid will, settlement may proceed more quickly and with less litigation than in a case where no instructive documents exist.

This legal document identifies an executor, the person who is in charge of handling a great deal of the process. They are responsible for handling the assets, a task that includes both identifying and determining their value. They are also responsible for paying any debts and taxes owed. Finally, this individual is responsible for distributing the such assets in accordance with the terms and conditions of the will.

Duties of an Executor

In order to pay the debts associated with the estate, the executor may be charged with selling some or all of the assets. In determining what to sell, they may take steps such as hiring experts to provide information regarding their value. In a situation in which the designated person has also died, is otherwise unable to carry out the responsibilities, or cannot be located, the court can appoint a substitute.

To account for potential unavailability, many people include both an executor and a subsequent person to handle the estate in the event the first identified individual cannot carry out their responsibilities. He remains in contact with the court to provide the contents of the will, to document the steps taken to transfer the property to the designated heirs, and to document the payment of debts and taxes.

Avoiding Probate

In some cases, an estate can avoid an extended process. Most states have a shorter or simplified handling of small estates. Each state has its own definition of what constitutes a small estate, so executors should check with the state probate court to determine whether the estate qualifies. Of course, people can also avoid this by establishing a revocable living trust and transferring their assets into it during their lifetime. This allows anything in the trust to transfer to heirs without the costs or delays involved in the process.

If you are the executor of a will or the closest living relative of someone who recently passed away, you should understand your rights and responsibilities. You'll want to learn more about the probate process so that, when the time comes to manage it, you'll know what steps must be taken for settlement. Additionally, you will have to ensure that you follow the applicable state laws to avoid potential legal and tax-related implications if not settled properly.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.