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.
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 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.
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.
Read More: How to Be a Personal Representative for an Estate
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.
Carole Oldroyd, a writer based in East Tennessee, has authored numerous DIY home improvement, Human Resources, HR and Law articles. In addition to holding a degree in paralegal studies, she has more than 10 years of experience renovating newer homes and restoring historic property.