What Does a Probate Court Do With a Will?

By Tom Streissguth

A probate court is a legal venue for authorizing the terms of a will, or determining how the assets of an individual are distributed to heirs after his death. When an individual dies without a will, the probate court divides assets according to state law. Probate court is also the venue for appeals or contests of existing wills by those with standing to do so.


The first step in the process is filing the will with the court after the death of the testator, or the person who wrote the will. The court clerk examines the will to ensure that it has been signed and witnessed. The clerk may also require that witnesses to the will sign an affidavit, or appear personally and under oath, to state that the testator was competent to write the will, and knew of its provisions.

Personal Representative

The court then approves the personal representative, or trustee, who is appointed to carry out the terms of the will and the intentions of the testator. This individual is usually the person named as the executor in the will. If no will exists, then the court appoints a personal representative. If a will exists but does not designate an executor, then the court appoints a close relative, often a spouse or the children of the testator, to fulfill this task.

Protect your loved ones. Start My Estate Plan

Legal Notice

If state law requires it, the clerk or executor publishes a notice in local newspapers that notifies creditors and other interested parties that a will has been entered into the record, and setting out the length of time that all parties have to make claims against the estate or contest the will itself.

Division of Assets

If anyone contests the will or any of its terms, the court holds a hearing to determine whether or not the will is valid, or if a different will should be established. In some states, this process must be carried out by a jury trial. In other states, a probate judge makes the decision. After the will is legally established, the personal representative or court-appointed trustee draws up a full accounting of the estate, which the court must approve. The representative identifies the assets, pays valid debts and divides the estate according to the terms of the will. The representative/trustee must also handle the payment of estate, inheritance and/or gift taxes due to the federal or state tax authorities. The court also authorizes the payment of fees to the representative/trustee, as well as court costs, out of the estate, then closes the probate process and dismisses the personal representative/trustee from his duties.

Protect your loved ones. Start My Estate Plan
What Does Probating a Will Mean?


Related articles

Waiting Period for a Divorce in Minnesota

State law governs divorce proceedings, including any waiting periods. Some states impose mandatory waiting periods related to residency requirements and petition filings. In Minnesota, while the law requires a residency period before filing, the state does not require a waiting period once the petitioner files. As a pure no-fault state, Minnesota does not require evidence of wrongdoing. A spouse must file on grounds the marriage is “irretrievably broken.”

What Is The Difference Between a Living Trust and a Last Will in North Carolina

There are two types of legal instruments commonly used for individuals to set the terms of the distribution of their assets upon death. First, a “last will and testament” is a legal document where the person drafting the will appoints an executor (or personal representative) to carry out the will’s instructions in the probate process. Second, a living trust is a legal document where the asset holder may unilaterally change it at any time. Laws for living trusts and probate are governed by state law. Accordingly, North Carolina state law governs the differences between wills and living trusts for residents of that state.

Texas Deed of Trust Laws

Most purchasers of real estate use a third-party lender, such as a bank, to finance the purchase. The lender requires security for the loan so that if the borrower defaults, the lender can seize the real estate and sell it to repay the loan. Two legal devices are used in different states -- the mortgage and the deed of trust. Texas is a deed of trust state.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help. Wills & Trusts

Related articles

What Is Diversion of Property From a Trust?

Diversion of trust property is a legal term used to describe the misapplication or misuse of trust property. Not only ...

Trustee Not Paying Beneficiary

A trustee is a party who administers the assets of a trust and distributes them to beneficiaries in compliance with ...

What Does "Enter a Decree" Mean for a Divorce?

A divorce decree states the terms of a divorce. The court approves the terms for the divorce based on a divorce ...

The Executor & Trustee of a Will

Fiduciary powers, or powers to act on behalf of another, may be granted to both executors and trustees under a will. ...

Browse by category
Ready to Begin? GET STARTED