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.

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.

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.

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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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Responsibilities of an Estate Executor in California

References

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