How to Probate a Will

A Last Will and Testament does not go into effect automatically when someone passes away.  In order to carry out the wishes contained within a Will, it must pass through probate. Probate is the court-supervised process of authenticating a Will, paying a deceased individual's debts, and distributing property according to their wishes. The probate process can consist of multiple petitions, citations, publications in the newspaper, and (in some cases) court hearings.  Most people will need an attorney to represent them in the probate process due to all of the intracacies involved.

Why do You Probate a Will?

Probate can become necessary in order to transfer ownership of property under a Last Will and Testament.  Unlike a deed, which transfers property immediately, a gift of property in a Will has no effect until it goes through probate.Related FAQ
Do You Have to
Probate a Will?  For example, if someone owns a home in their name alone and leaves that home to their friend in a Will, then we would have to probate that Will in order to transfer the home out of the estate and into the friend's name.  In this way, probate bridges the gap between ownership of property by someone who has passed away and their chosen beneficiary, which preserves the chain of title.

By contrast, some property we own is considered "non-probate"  This property will automatically transfer to someone else upon our deaths by operation of a deed, contract, or other legal arrangement.  For example, if a husband and wife own a home as joint tenants, then when one of them passes away the survivor will automatically receive the deceased spouse's interest in the home.  The same goes for beneficiary designations in life insurance policies and retirement benefits, where a beneficiary will automatically receive property upon death of the owner without the need for court intervention.

Steps in the Probate Process

No two probate cases are truly alike, and they can vary in difficulty depending upon a lot of factors. Most people will benefit from having a probate attorney assist them through this process. While it is impossible to describe all of the issues that can arise, every probate case consists of several general steps:

Filing and Serving the Petition to Probate

The word "probate" technically refers to the act of proving that a written document is the authentic Last Will and Testament of a deceased individual.  Related FAQ
What Are The
Requirements
For a Will?In order to authenticate a Will, you must file a sworn petition in the probate court of the county where a deceased person resided.  This petition must show that the document being offered for probate meets all of the legal requirements for a valid Will. In particular, the Will must be properly executed and attested, the deceased individual must have had the mental capacity to create a Will, and the deceased individual must have executed the Will freely and voluntarily.

Many petitions to probate are uncontested, which means that everyone involved agrees that the Will being offered for probate is authentic and that the petition should be granted. In these cases, all of a Decedent's heirs will sign paperwork that they will submit to the court confirming that they agree with the petition. However, in cases where all of the heirs have not expressed their agreement, the probate court must serve the non-consenting heirs with a copy the petition and give them an opportunity to object. If these heirs live in the same county where the petition is pending, they must be served in-person by the local sheriff's office.

Entering the Will and Appointing an Executor

Assuming that a petitioner sustains their burden of proving that the Will being offered for probate is valid, and that none of the Decedent's heirs object, a probate court will grant the petition. At this point, the Will is considered "entered into probate", which is a formal determination of the Will's validity. If not appealed, the decision to enter a Will into probate becomes conclusive and can only be challenged at later date under limited circumstances.

Normally, a probate court will appoint an Executor for an estate at the same time it enters a Will into probate. An Executor serves as the legal representative for an estate and is the one with legal title to transfer estate property according to the direcitons in a Will. A Last Will and Testament typically contains a nomination for Executor, and that nominee is entitled to serve unless probate court finds them unfit.  A probate court must swear an Executor in and issue Letters Testamentary for this appointment to be effective.   

Payment of Debts

An Executor bears the responsibility for ensuring a deceased individual's outstanding debts get paid.  Within 60 days of being appointed by a probate court, an Executor must publish a notice in the newspaper for four weeks informing all creditors of a deceased individual to file claims for payment.  Related FAQ
What is the
Priority
of Debts?Creditors must then file their claims against the estate within three months of the last date of this publication.  No creditor can bring action to enforce a debt against an estate or compel an Excutor to make payment until at least six months after the Excutor's appointment. An Executor must pay all debts of an estate according to a statutory priority, and if higher priority debts deplete the estate lower priority creditors are out of luck. 

Executors, heirs, and beneficiaries of a Will should know that creditors cannot hold them personally responsible for the repayment of a Decedent's debts.  All creditors must file claims with an estate and be addressed accordingly. However, Executors can incur personly liability if they violate their duties and distribute property from an estate before paying all debts.

Distribution of Property

Once all outstanding debts of an estate have been paid or negotiated, an Executor can begin distributing property according to the instructions in a Will.  Sometimes, an Executor might need guidance from the probate court to make these distributions if the Will is ambiguous.  For example, if a Will leaves a specific piece of property to a beneficiary but the deceased individual no longer owned that property at the time of death, did they intend to provide a substitute a gift of equal value or is that gift void?  When Executors need guidance on these questions, they can ask a court to formally interpret, or "construe", a Will.

Discharge

After an Executor fully administers an estate, they must ask the court for a formal discharge from office and liability.  Until an Executor receives a discharge, the estate remains open to claims from new creditors and the Executor remains "on the hook".  Many people who attempt to probate a Will without an attorney's assistance do not know about this critical step.  Obtaining a discharge as Executor actually requires a separate petition with the probate court, which must be acknowledged or served upon all of the Will's beneficiaries, and a separate publication in the newspaper.