To commence probate, the decedent's will must first be filed with the applicable court which, in most jurisdictions, is the court of the county where the decedent last resided. The executor or another interested party petitions the court to probate the will.
Many states require that notice be given to any interested parties immediately following the filing of a probate petition. This allows parties to make claims against the estate or contest the will, if necessary.
The court appoints an executor to administer the estate. In many cases, the decedent's choice of executor is named in the will.
Will Authentication and Validation
The court must determine the will's authenticity and validity, which typically involves insuring that the decedent's signature is genuine. Validation requires that the circumstances surrounding the will's formation complied with applicable state law. The court must also ensure that no later wills exist.
Also included in the probate process is an inventory of the property and assets that will be transferred to beneficiaries. A decedent’s estate consists of property owned solely by the decedent, and excludes jointly held property.
Claims Against Estate
Any claims against the estate must be settled before the court can make a final inventory of all property and assets. Claims may include outstanding debts or ownership disputes over property. The executor must also pay any applicable taxes, fees and expenses owed by the estate.
Will Contest Settlement
The probate court also decides any will contest, which is a challenge to the validity of the will or its terms. Bases for a contest include undue influence on the decedent or a decedent's impaired mental state at the time of writing the will.
Once any claims against the estate have been resolved, and taxes and expenses have been paid, the remaining assets can be distributed to beneficiaries in accordance with the will’s terms. If there was a will contest, the executor distributes as directed by the settlement. All beneficiaries must sign a release waiving any further claims against the estate. Once the asset transfer occurs, the estate closes and probate concludes.