What Does It Mean if a Will Has Been Probated?

By Lee Carroll

Wills are often thought of as legal documents, but they do not become so until after the testator, or person who created the will, dies. Upon death, the will is activated and the process of settling the estate begins. In many cases, but not all, settling requires probate court. Smaller estates and those that are reasonably safe from being contested often do not require probate, or they can take advantage of a streamlined probate process.

Probate

The word "probate" is legally defined as proving or verifying that a thing is legitimate or valid. In terms of wills, probate has taken on a broader meaning to encompass the entire scope of processing a will and administering the estate after a testator dies.

Probate Courts

Probate courts ensure wills are valid and processed correctly, leading to the successful repayment of creditors, distribution of assets and eventual closure of the estate. They are usually considered lower courts, often existing at the county level. Probate courts have different rules from state to state, and many provide important forms to assist citizens with entering a will for probate.

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Estate Opening

The beginning of any will probate process is entering a petition with the court to open the estate and presenting the will to the court. The judge attempts to approve the will's validity by having original witnesses confirm, as noted by the Oregon State Bar Association. The judge can appoint a personal representative or allow a personal representative named in the will to take on executor duties. Some states require a potential personal representative to apply for acceptance. She is either given or applies to receive letters testamentary, which are court approval letters identifying her as the personal representative and giving her authority to act on the behalf of the deceased person in all matters of the estate.

Executor, Executrix or Personal Representative Duties

Personal representative is a term that encompasses both males and females, used in place of executor -- male -- and executrix -- female. The bulk of the work involved in administering an estate is on the shoulders of the personal representative. It is sometimes simpler to think of a personal representative as a person who handles all matters of the estate as the deceased person if she were able. He must inventory the entire estate including real property, personal property and bank accounts. He is authorized to pay off creditors from the estate and he may challenge any creditors whose claims against the estate seem questionable. If there is not enough money in the estate to pay creditors, he may sell rent or lease property to pay those debts. In many states, the personal representative is charged with notifying next of kin that a will exists. He may file the death tax return and distribute residual monies to heirs after all enumerated gifts are given to beneficiaries and creditors are paid.

Estate Closing

Once all debts are settled and the remainder of property is distributed, the personal representative gives an accounting to the court and files a petition to close the estate of the deceased person. When the judge closes the estate, the personal representative is released from all duties.

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North Carolina Statute of Limitations for Filing a Will

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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.

How to Confirm an Executor of a Will

An executor is the person named in the will who is in charge of administering the deceased's estate. The executor marshals the estate assets, pays the debts and distributes assets according to the terms of the will. In some cases, the executor needs to be confirmed by a probate court before he can carry out his duties. The court gives the executor official documents that confirm the executor's authority to act on behalf of the estate.

Can a Non-Lawyer Bring a Will to Probate Court?

Probate is the process of ensuring a will's validity and carrying out the instructions it contains. The probate process is overseen by a probate court, but the actual work on the estate is typically done by the estate's executor or personal representative. A non-lawyer may file a will to open the probate estate and may serve as executor.

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