What is Probate?

Probate is a court proceeding which allows a decedent's assets to be distributed either in accordance with the decedent's will or as directed by the law in the state in which the decedent resided at the time of his or her death.The process of probate is usually started by the filing of a document, sometimes referred to as a pleading in legal speak, with the court, in the county in which the decedent lived in at the time of his or her death. If the decedent died with a will, the original will normally accompanies the application submitted to the court.


In the application, the applicant asks the court to appoint a personal representative. It is the personal representative who collects the decedents assets, pays the decedent's bills, and then distributes the decedent's assets in accordance with the decedent's will or by the laws established in the state where the decedent died. Dying without a will is commonly referred to, again in legal speak, as dying intestate.


As a general rule, barring any complexities, the probate process should last no more than six months. During the six-month period of time a notice to creditors is usually published in a newspaper in the county in which the decedent resided giving the decedent's creditors the right to file a claim in the estate. A claim can be contested, if the personal representative believes it is not legitimate. Distributions, at least in whole, are not made until all creditor claims have either been settled or paid. The conservative approach is to not make distributions until the period of time in which creditors have to file a claim has lapsed.


Another complicating factor, which can cause a delay in closing an estate, is the filing of income taxes. Sometimes, the personal representative finds he or she must continue to act in this capacity to gather information, which is often not available until the first quarter of the year, to file income tax returns for the year in which the decedent died. In many cases this is the cause of the delay in closing the estate. It does not necessarily mean distributions cannot be made from the estate. It just means the estate cannot be closed as expeditiously as the heirs might wish. This is not the fault of the probate process.


It is possible, someone may decide to contest the legitimacy of a will and this can cause a delay in the adminstration process.  Contests are usually made for one of two reasons. The first reason is the decedent did not have sufficient mental capacity to sign the will and therefore the will is invalid.The second reason a contest is started relates to the fact the decedent was unduly influenced by someone to alter a prior estate plan. Neither grounds for contesting it a will are easy to prove. It is very difficult to show that on a particular day and time when a will was executed the decedent did or did not have capacity. An easier course, to set aside a will, in many cases,is to show the decedent was unduly influenced and the will does not reflect the decedent's wishes, but the influencer!