When a person dies, their estate must be dispersed and debts must be paid. The estate must go through probate, which can be a complicated process. If you have recently lost a loved one, you may be anxious about the idea of going to court. It can be helpful to understand the court process and what to expect at a court hearing.
What is Probate?
Probate is the legal process of distributing the assets of a person who has recently deceased. The process follows the will if there is one and state law is there is no will. It can be quite lengthy, depending on the worth of the estate, the number of creditors and heirs, and other complications that can arise, especially if someone disputes the will.
For probate to begin, the executor or personal representative must file the will and a petition to begin probate with the county court where the decedent lived. They have a limited time to file the will, but probate usually begins the same time.
The Court’s Role in Probate
You may wonder why the court gets involved in probate. The court is responsible for ensuring that the will is followed and the decedent’s wishes are honored. If there is no will, the court will make sure that the assets go to the heirs as listed in the state statutes on probate.
Another task of the court is to judge on appeals made by creditors or heirs about their rights to the estate. The executor may deny a claim made by a creditor, but it is up to the court to determine whether it is legitimate or not. An heir may file a claim against the estate regarding the validity of the will. The court will have to review evidence to determine if the will is valid. In essence, the court acts as overseer and manager of the estate until probate has been completed.
The first step in probate is to file the petition with the court. Once that has been recorded, the court will set a hearing date and all parties will receive a notice for the date and time. Parties include the executor or personal representative, heirs, creditors and anyone named in the will.
The First Hearing
At the first hearing, the executor of the estate is chosen. While the will may have named someone to act in that role, the court must approve the decision and give them the powers necessary to act on behalf of the estate.
The court may ask about the relationship between the deceased and the personal representative. The executor or representative may need to explain why the estate must go through probate. For instance, it may be due to the size of the estate or type of assets.
The court will determine whether to appoint the personal representative. In most cases, it will approve whoever is named in the will. However, the person chosen may not want to act as the personal representative or other heirs may dispute the choice of executor. In these situations, the court may need to appoint someone else.
If the person is accepted as personal representative, the court will issue Letters Testamentary, which basically state that they have the authority to act for the estate. It allows them access to assets and information during the probate process.
The first hearing may be continued if more information is needed by the court or if there is a dispute about who the executor should be. Depending on the situation and state, the court may require the executor to have a bond to cover any issues of negligence to prevent loss to the estate.
The Next Steps
Once the hearing has concluded and the executor has been appointed, they must begin carrying out their duties. They will find and appraise all assets, pay creditors and file taxes. They may need to liquidate some assets or transfer title to the heirs.
The personal representative or executor will need to publish notice to all parties about the estate. This may include sending out letters to heirs and all known creditors or just publishing in a local newspaper. The details vary by state, but posting notice is required in some form.
The Second Hearing
Once the personal representative has completed their duties, they will file a Petition for Final Distribution. This petition must be approved with second hearing. The hearing will happen about 10 to 12 months after the probate was filed. Of course, this depends on the size and complexity of the estate and if there were any issues and delays.
The executor or personal representative will provide details of what they did, which the judge will review. The judge will make sure all requirements were met within the timelines and that all duties have been performed. Some states require a detailed accounting of where the funds went.
Once the judge has reviewed everything and it is in order, they will sign the petition for distribution. The estate will then be closed.
Does Every Estate Go Through a Probate Hearing?
There are times when an estate may be able to avoid a formal probate process and the hearing. For instance, if the assets of an estate were placed in a trust, probate wouldn’t be necessary.
Another situation is when the estate is small enough to qualify for nonformal probate or a small estate administration. While a hearing might be necessary to appoint the executor, the entire process is usually more informal and the court doesn’t maintain such strict control over what happens.
When a Will is Disputed
If the will is being disputed, the court will need to hear the evidence as to why the party believes it should be contested. The person will notify the court of their reason to dispute the will. They have only four allowable reasons to contest the will:
- Issues with how the will was signed and executed
- Mental capacity of the decedent when the will was signed
- Undue influence
If any of these situations exist, the person has a right to contest the will. However, they will have to prove their case with the court before the will or any part of it will be thrown out. Once the judge has ruled on the contested will, the rest of the probate process can move forward.
Court hearings in the probate process are a necessary part of distributing the estate and following the will. They do extend the timeline for probate because they must get on the court’s docket. However, they won’t seem as imposing or frightening once you understand their purpose.