Probate is the legal process that ensures your debts are paid and legal title to your assets is transferred to the appropriate heirs and beneficiaries. If you have a will, the probate process will determine whether the will is authentic and valid.
A probate court is a judicial court that primarily deals with matters such as wills, estates and guardianships. For example, when a will is contested, the probate court is responsible for ruling on the authenticity of the document and the mental capability of the person who signed it. Each state creates its own probate courts, and the processes vary.
The essential role of a probate court is to assure that the deceased person’s debts are paid and the remaining assets are distributed to the correct beneficiaries. As part of that role, a probate court appoints an executor to manage the estate and represent it, determines the validity or any purported will, appoints a guardian of any minor children of the deceased, and identifies all creditors and heirs. The court’s actions in estate and probate proceedings vary from case to case and from county to county.
The probate process can take anywhere from three months to several years, depending on the complexity of the estate and the local process. An estate goes through probate in the city or county where the deceased had his or her principal residence at the time of death. If the deceased owned real estate or other fixed, immoveable assets in a different locality, the probate for those assets takes place in the city or county where an asset is located. That makes it possible for parts of an individual’s estate to be probated in different courts.
Though the details vary considerably among the many probate courts around the U.S., there are some broad elements of the process that are consistent.
There are typically three probate court hearings during the process, and the executor of the estate mainly manages the procedures.
The first hearing occurs after an official notice of probate is issued to the probate court. At this first hearing, the probate judge will officially name the executor for the estate with a letters of testamentary if there is a last will and testament, or a letters of administration if there is no last will and testament provided. Usually this hearing can be streamlined when the executor, or the administrator of the estate, obtains a waiver of process and consent to probate from all interested beneficiaries prior to the first hearing. This also increases the likelihood that the probate process will be more independent from the probate court’s oversight.
The second probate court hearing is known as the court confirmation hearing. This occurs after the executor has prepared the inventory, appraisal, and any plan to sell assets. The court confirmation hearing is to approve and oversee the sale of the assets, which is usually real estate or property of the deceased. At the hearing, the executor will present any offers accepted for the sales of assets.
The probate judge often will not immediately accept the offers and will open an overbid process, similar to an auction with interested buyers bidding on the property. Then, the probate court will accept and confirm the sales, ending the hearing. The process varies depending on the role of the executor under local law. If the executor was granted more independent authority, there may not be a need for this hearing.
The final probate court hearing reviews the executor’s final accounting of the estate and plan to distribute the assets. In the final accounting, the executor shows the initial value of the estate and adjusts the value for any debts, fees and taxes paid and deposits received from asset sales. The court also determines whether every reasonable effort was made to contact the estate’s creditors and pay debts. Once the distribution plan is approved, the probate judge will rule to close the probate process and dissolve the estate. After this, the executor distributes the remaining assets to the beneficiaries according to the plan.
Valuable contributions to this summary of “What is Probate Court and What Happens at a Probate Court Hearing?” were made by Bob Carlson, editor of the Retirement Watch financial advisory service and chairman of the Board of Trustees of Virginia’s Fairfax County Employees’ Retirement System with more than $4 billion in assets.
Katie Kao is an editorial intern with Eagle Financial Publications.