Probate is a process that is required to validate a will, in some cases probate can be avoided. If you have a specific trust or certain exceptions in your will, you may be able to avoid probate. However, if the will is required to go through probate it’s important for you to know what to expect. As an estate planning lawyer with our friends at the Brandy Austin Law Firm will explain, the probate process can be broken up into these four main steps:
The first step in the probate process is to file the will and also file a petition with the court. The will must be filed at the court in the decedent’s county of residence. Once the will has been filed, all beneficiaries and heirs will be notified that it’s been filed which gives them a 10 day window for the opportunity to contest or challenge the will. This is not the only time for challenging a will, the will can also be contested later on. The petition that must be filed is a petition asking the judge to put this will through probate to prove its validity.
After filing, next is the hearing. This hearing will take place before a probate judge and the judge will acknowledge the death of the decedent and verify that the decedent’s will is valid, they will also verify that the person applying to be the executor is fit to do so. Later on once the will is declared valid and everything is good to go, the executor is the person that will carry out to requests of the decedent listed in the will. The person wanting to be the executor has to show certain documents ot the judge to prove things such as proving that the decedent was a resident of that county, that the will filed is the last will and testament of the decedent, and provide the date of death. The executor is also required to swear an oath that they will fulfill the responsibilities they have as the executor of the will.
The next step in this process is for the executor to notify beneficiaries, pay debts, and file the final tax return. This can be a lot of work for the executor but it’s a crucial step in this process. Paying off debts can include credit cards, loans, bills, mortgage, or all of the above. All debts must be paid before the beneficiaries can be given their share of assets written in the trust. If teh executor is not fulfilling their duties properly, whether that be intentional or unintentional, the heirs can pursue an attorney to file a “breach of fiduciary duty claim”, so it’s important to know what your signing up for when you decide to be an executor.
Once all debts have been paid, the assets can then be distributed to the beneficiaries based on the contents of the will. The estate cannot be settled until all disputes are resolved. If any beneficiaries or heirs have a problem with the will then it is important for the executor to help resolve any issues in order to ensure that the beneficiaries can receive their assets easily.
Not every asset is required to go through probate and not all estates are the same. The process of probate can go on anywhere from a few months to a couple years depending on the complexity of the estate as well as the county’s calendar and how busy they are. If a loved one’s will is required to go through probate it’s important to know what to expect, especially if you are petitioning to become the executor of the will — reach out to a lawyer near you with any questions you may have.