Family Law: What Is the Probate Process?

Probate is a term that you've probably heard before in passing when someone has lost a loved one. Although, the term may be familiar, the actual process that applies may be unfamiliar. There is a lot of detail to the mystery of the probate process; however, it is not so difficult that the average bear can't understand when explained in simplified terms.

Probate refers to a court proceeding related to the settlement of a person's estate after death. The decedent's outstanding debts are settled. Legal title to all property is sold and/or formally passes from the decedent to the appropriate heirs and beneficiaries. A personal representative, executor or user will be assigned to conduct the affairs of the estate, depending upon the provisions of the will.

The process can be somewhat lengthy and complex. It is typical protocol to initiate the probate process via an estate attorney. Below are most of the steps included in the probate process:

* The executor, user or personal representative will hire an estate attorney to file a Petition for Probate of Will and Appointment of Executor. The probate case will be opened in the county in which the decedent lived prior to death. The petition will be filed with the clerk of the Probate Division of the county court. A copy of the death certificate will be presented with the petition.

* A date will be set to formally appoint the person named in the will as the user or executor of the estate. The executor is presented on the appointed date, the court inspects the will, issues an order to admit the will to probate and formally appoints the executor. The county probate clerk then records the will.

* Once admitted to probate, the will becomes a public record, along with subsequent filings submitted to the court. The filings are available to be viewed by anyone. Most states require public notice regarding the probate proceeding via publication in applicable newspapers.

* Letters of Administration or Letters Testamentary are issued to enable the legally appointed executor or user to conduct the affairs of the decedent's estate.

* The user or executor conducts a full inventory of the estate, to include all debts, assets and monies owed to the decedent. Assets may include money loaned, a final paycheck, retirement accounts, life insurance policies or other forms of payment due.

* The executor or user will pay debts of the estate ongoing until the probate process is completed and all property is disbursed.

* After all estate debt and expenses have been paid, the executor distributes the personal property as directed in the will. Real estate can only be sold or transferred after a specified waiting period determined by state probate law. After the waiting period is over or expires, the executor then distributes the remainder of the decedent's assets or property.

* The executor is required to file a final accounting of the estate with the probate court clerk.

* Depending on the state law, the executor may be required to place ads in the newspaper to notify the public that the estate will be closed before the court will allow the estate to be finalized and closed.

Ki lives and works in Austin Texas. After graduating from the University of Texas he began working in the Austin real estate market. His site has a search of the Austin MLS along with information about mortgage rates.