Probate is the process of proving the validity of a will and administering an estate according to the directions in the deceased person's will. It's also necessary to determine who should receive the decedent's assets when no will is found and to distribute assets when a will names multiple heirs who have no pre-existing ownership rights. Probate court is the part of the justice system that deals with wills and estates; it can be as simple as a special judge and the court clerk.
Following a death, an administrator must legally settle the decedent’s financial affairs. When the decedent has left a will outlining his wishes, this document is presented to the probate court. Often, the decedent's will names the person he wants to administer the estate. Absent that, the court appoints the administrator, who's sometimes called a representative or executor.
When someone dies without leaving a will, the court will appoint the administrator, typically a family member. The state laws may require that the spouse of the decedent be given first consideration.
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It is the responsibility of the executor to inventory and protect the assets of the decedent's estate. In addition, the executor pays any outstanding bills and closes accounts, such as those for utility or phone services. The court publishes a newspaper notice, giving creditors the chance to submit claims. The executor pays all legitimate debts and any taxes due from the estate. When the executor has settled all legal claims on the estate, she distributes the remaining assets to the heirs as named in the will. Often property owned jointly, such as a home of a married couple, is excluded from the probate process and the title to the property is simply transferred to the survivor.
State laws vary on how soon the probate process can be completed. For small estates that do not require filing an estate tax return, the process can average six months to a year. Certain circumstances can slow the process. For example, waiting for real estate to sell on the open market can significantly affect how much time it takes to settle an estate. It can take longer for larger estates to complete probate. The same is true when a will is contested.
Vicki A Benge began writing professionally in 1984 as a newspaper reporter. A small-business owner since 1999, Benge has worked as a licensed insurance agent and has more than 20 years experience in income tax preparation for businesses and individuals. Her business and finance articles can be found on the websites of "The Arizona Republic," "Houston Chronicle," The Motley Fool, "San Francisco Chronicle," and Zacks, among others.