When attorneys and estate planners mention probate, they are referring to the legal process of distributing the assets and paying the debts of a deceased under court oversight. Probate of the decedent’s Last Will and Testament or intestate estate (if he or she died without a Last Will) is within the jurisdiction of the state’s probate court.
Generally, issues arising out of inter vivos trusts and testamentary trusts fall under the probate court’s jurisdiction, too. As do guardianships and conservatorships, and adoptions in some states.
Probating the Decedent’s Estate
Probate laws differ from one jurisdiction to the next, but many state laws share similarities with both informal and formal probate proceedings, along with simplified procedures to ease the administration of small estates. Check your state’s laws and rules of court to determine what the probate process will be for any given decedent’s estate. There is nothing unusual about the decedent’s estate being probated in one jurisdiction while the devisees and heirs reside in other states or countries.
Testate vs. Intestate
Intestate succession laws differ from testate successions laws, so it is very important to search diligently for a Last Will or will substitute before opening the probate. The Last Will must be delivered and proved to the court for the probate to continue under the laws of testate succession. If no testamentary instrument or Last Will can be found, then the probate proceeds as an intestate estate.
Appointment of an Executor or Personal Representative
A probate lawyer prepares and organizes all of the legal papers and pleadings needed to open the probate case, whether it is to proceed testate or intestate. Among the initial pleadings is a request to appoint someone as the personal representative or executor of the estate. Because orderly administration during probate requires an executor or personal representative, the appointment process is usually completed quickly. If there is an objection to a particular person’s appointment, then a court hearing may be set with the judge deciding the disputed issue. With an intestate estate, there may be several individuals vying for the position of the personal representative. Look to state law to determine who has priority of appointment as personal representative.
How Long Does Probate Last?
Depending upon the jurisdiction, and the size and complexity of the estate being administered, probate could take anywhere from four months to over a year. When the estate includes properties that will take a long time to liquidate, or when many disputes arise during administration, probate could continue for years. Before someone can open probate, states typically have a waiting period – usually 30 days following the person’s death.
After probate is filed, a public notice to creditors is given to all possible creditors of the decedent by newspaper publication identifying the probate court case, personal representative or executor, the decedent, and important deadlines for creditor claims against the estate. If creditors are known, then notice may be given by correspondence.
Probate Distribution, Accounting, and Closure
Although there can be guardianship, conservatorship, trust, or multiple trusts associated with any probate, payment of debts and final distribution to those entitled to the estate is the common theme. When the estate is completely distributed to heirs, beneficiaries, and devisees, the personal representative prepares a final accounting. If everything is in order, the court will close the probate.
Brian Winter is a family law and estate planning attorney in Phoenix, Arizona. Mr. Winter is a partner with Stewart Law Group with offices throughout Arizona. The firm has helped many clients navigate the legal complexities of estate planning, wills, probate, divorce, child custody, spousal support, property division, parental visitation, and child relocation disputes.
