Home Law The Probate Process Explained  

The Probate Process Explained  

by Aishwarya Gaikwad
The Probate Process Explained

Probate is a legal process that assesses the deceased’s will and validates it as a document encompassing the final testament of the deceased. In case there is no will, the intestacy laws within the deceased state will be observed during the settling of the estate. But, how long does probate take?

Before administering the estate, settling claims, and distributing property according to the will, the probate registry must first issue the grant of probate. The registry is legally empowered to oversee matters concerning wills and estates. The probate process aims to legally validate the testator’s (deceased person’s) will before approving. 

What Is The Purpose Of Probate?

Therefore, the purpose of probate is to approve the executor’s actions according to the deceased person’s will. Yet, if necessary, the executor may enforce probate in the law courts, leveraging it as a legal instrument. On the other hand, the probate process officially acknowledges the appointed executor and approves them as official administrators of the deceased estates. 

Probate Process 

As an appointed executor, your first role is to apply for the grant of probate, a legal document often issued by the probate registry. A probate grant is a sealed document officially issued by the probate registry confirming that the named person can administer the testator’s estates. It empowers the executor to assemble the testator’s assets, pays pending taxes and debts using part of the assets, collects money owed to the deceased, and divides the remaining assets accordingly to beneficiaries. This process can take somewhat six months. 

While there is no deadline to apply for probate, executors often request it within the first three to six months of death. However, the beneficiaries are most likely to criticize their executor if a year elapses without taking action. Before grant application, the executor must collect all the information concerning the deceased possessions and how much they are worth at the time of death. 

This information should also include possessions from other parts of the world and can be accessed via family members, decedent documentations, policyholders, or financial institutions. Yet, the information provided must be accurate; otherwise, the executor risks facing potential penalties. The registry often takes three to eight weeks inspecting the submitted documents, provided they have no further inquiries to raise, then issues a befitting grant.

Depending on which state you’re from, you’ll find various laws governing the probate process—and whether it’s necessary after someone’s death. For example, a particular state might decline to grant probate if the deceased assets fall below a specified value. Another example, people residing in Texas are free to skip probate if the estate value is below $75 000. In that case, other alternative legal actions can be pursued, including an affidavit. Additionally, other alternatives are more likely to be considered if the deceased debts outweigh their assets.

Will Authenticating

Different states have different laws concerning the petition for grant of probate. Various states require the will holder to file it as soon as possible, alongside the death certificate and the petition. If the will is present, a court hearing might be scheduled, and all the named beneficiaries and heirs notified upon the hearing date. 

The hearing is purposely set to validate the will and handle any objection to the presented information. For instance, someone might have a more recent will than the former, or the current will might be poorly drafted. The court requests witnesses for the will to be authenticated, but most Wills have a self-proving affidavit signed by the deceased and other witnesses.

Who Can Apply For Probate 

Not everyone is free to apply for probate. However, the application process is often simplified if the deceased leaves a will. If there is a will, the individual named as the executor can readily apply for probate. To apply, you should possess the will documents signed by the deceased alongside two witnesses. In addition, the will must be the original signed document, not the copy.

In case the deceased leaves no will, an administrator is entitled to handle their property. Any close relative to the deceased can apply as an administrator, given they are 18 years of age. The wife and children are often termed the most liable in the administrative capacity, followed by grandchildren and great-grandchildren.

When Is Probate Not Necessary? 

There are cases when applying for probate can be unnecessary. For example, when the deceased was in joint possession of property, shares, or money and other assets – these assets are termed non-probate, meaning they can’t go through the process. In other instances, the decedent can name the beneficiary, thereby making the assets non-probate. Other non-probate assets include those in a living trust, life insurance with predetermined beneficiaries, among others.

Related Articles