Probate is a court-supervised process for determining and gathering the assets of a deceased person, known as the decedent, paying his debts, and distributing his assets to his beneficiaries and heirs. Although state law varies regarding specific procedures, notice of probate is meant to accomplish the same thing in every state; that is, notice of probate gives parties who have an interest in a decedent's estate warning that the probate process is being initiated. As beneficiaries may not know they were included in a decedent's will, notice gives them an opportunity to assert their rights at the very beginning of probate administration.
The probate court determines whether a will is valid, oversees the distribution of a decedent's assets and hears will contests. When a will maker, known as a testator, names an executor in his will, the executor is usually, but not necessarily, the person who initiates the probate process. To start the probate process, the executor or another person of interest, such as a family member, must admit the testator's will to the probate court. The court then reviews the will to determine its validity. Once the will is determined valid, the court then appoints the executor, who is usually the person named as executor in the will. Although probate procedures vary from state to state, the executor typically must send notice of probate immediately after officially accepting his appointment. If a decedent dies without a will, or intestate, the probate court will appoint an estate administrator to manage and distribute the estate. In this case, the administrator must send notice of probate to all heirs at law. These are the decedent's heirs to whom his property will pass according to the intestacy laws of the state where the decedent resided at the time of death.
Executors are charged with sending notice of probate to interested parties. Interested parties are individuals who are named as beneficiaries in a decedent's will. An executor must try his best to give legal notice to all interested parties by sending them notice of probate via mail or a process server. If an executor can't find the address of an interested party, he must typically publish notice in a local newspaper for a specified number of weeks. Furthermore, an executor is typically required to give the probate court proof he sent notice. If there is no will, the estate administrator must conduct a search for heirs in accordance with state law.
Read More: "Interested Person" Probate Definition
Rights of Interested Parties
Once interested parties are placed on notice, they can become involved in the probate process. Beneficiaries and heirs generally have the right to receive copies of estate inventories and ask for accounting statements regarding payments to creditors. Notice of probate gives beneficiaries and heirs a "heads-up," so to speak. In other words, it gives them a chance to assert their rights to an inheritance and allows beneficiaries the opportunity to contest a will at the beginning of the probate process.
Notice of Probate vs. Notice to Creditors
Notice of probate and notice to creditors are two different things. Executors and administrators must also give notice to a decedent's creditors -- usually by mailing actual notice of the decedent's death and/or by publishing notice in a local newspaper, depending on state law. Notice to creditors generally takes place after beneficiaries receive notice. Once creditors receive notice, they may then submit claims foe debts owed and the executor or administrator uses estate funds to pay the claims.
- Backes & Backes: Notice of Probate from a Litigator’s Perspective
- VirginiaEstateLaw.com: Notice of Probate
- The Judicial Branch of Arizona: What is Legal Notice?
- Hamilton County Probate Court: Notice of Probate of Will
- Gloucester County New Jersey: Notice of Probate - Proof of Mailing Instructions
- The Institute of Continuing Legal Education: Chapter 6 - Creditor’s Claims
Andrine Redsteer's writing on tribal gaming has been published in "The Guardian" and she continues to write about reservation economic development. Redsteer holds a Bachelor of Arts in history from the University of Washington, a Master of Arts in Native American studies from Montana State University and a Juris Doctor from Seattle University School of Law.