A last will and testament is intended to direct how a person wishes her assets to be distributed upon her death. In order to make sure the terms of the will are conformed to, each state has enacted a probate code. Probate is the legal process required when a person dies. The will must be admitted to probate and certain procedures followed before the beneficiaries may inherit under the terms of the will.
Death Certificate, Will and Probate Statutes
The first step when probating a will or estate is to obtain a copy of the decedent's death certificate. A certified copy can normally be obtained through the local clerk's office or the state Department of Health. Next, the original will must be located. Typically, the will is in the possession of a family member or the decedent's attorney. Finally, a thorough understanding of the state probate code is necessary in order to determine what forms must be prepared and what options you have for probating the estate. Some state's allow informal administration of small estates for example. State statutes can be located online through court websites, at a local library or at a law library.
Petition and Notice
Unless an informal administration is appropriate and allowable, a formal petition to probate must be filed with the court in the county where the decedent was a resident at the time of death. A petition for appointment as executor or administrator is also necessary. In most states, the will names an executor. If an executor is not named then the court must appoint an administrator or personal representative. Notice must also be given to all the beneficiaries under the will that a petition to probate has been filed. Forms are often available through the local probate court.
Inventory and Payment of Claims
Once the estate has been opened, a complete inventory must be conducted. All of the decedent's real and personal property, including both tangible and intangible property, must be listed in detail and a current market value noted. The inventory must be filed with the court. The executor must also review and approve any claims submitted by creditors against the estate. Taxes must also be paid. If approved, the claims must all be paid out of the assets of the estate. In some cases, assets must be sold in order to pay claims.
Distribution of Assets
After all claims are paid, the last thing that must be done to probate a will is to distribute the remaining assets to the beneficiaries. The assets will be distributed according to the terms of the will. If any assets remain after distribution to the beneficiaries listed in the will then the assets will go to any heirs under the intestate succession laws of the state where the will is being probated.