What Does Probating a Will Mean?

By Catherine McNally

The will probate process may seem complex on the surface. A closer examination, however, reveals that the process is actually relatively straightforward. At its core, probate involves the state court oversight of a will's authentication and the distribution of an estate's assets.

Probate Petition

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.

Probate Notice

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.

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Executor Appointment

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.

Asset Inventory

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.

Estate Distribution

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.

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What Happens After an Estate Has Been Probated?
 

References

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State probate courts, sometimes known as surrogate’s courts, are charged with probating decedents’ wills. But before the probate process commences, courts must ensure that each will is legally enforceable. If a probate court finds a will to be defective or invalid, the will can be denied probate, in which case, the estate will be distributed in accordance with the state’s intestacy laws instead.

What Are the Duties of an Executor of a Will in Missouri?

The law refers to a person who drafts a will as a testator. When a testator drafts a will, he typically designates a person as an executor, or personal representative. The Missouri Probate Code states what duties and powers an executor of a will has in administering a Missouri estate. The executor’s main duty is to administer the will’s instructions regarding the distribution of the testator's estate assets and resolve all claims against the estate.

What Does a Probate Court Do With a Will?

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.

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