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  • Sean Parent

What is Probate? Understanding the Legal Process of Estate Administration

Probate is a term that often arises in discussions surrounding estate planning and administration. It refers to the legal process through which a deceased person's estate is distributed and settled under the supervision of a court. In this article, we will delve into the key aspects of probate, including the opening of an estate, appointment of a personal representative, supervised vs. unsupervised administration, notice to creditors, creating an inventory, administering the estate, and the eventual closing of the estate.

1. Opening an Estate

The probate process begins by opening an estate in the appropriate court. This involves filing the necessary paperwork, including the decedent's will (if one exists) and a petition for probate. The court reviews these documents to validate the will's authenticity, establish jurisdiction, and determine the appropriate personal representative.

2. Appointment of a Personal Representative

Once the estate is opened, the court appoints a personal representative (also known as an executor or administrator) to oversee the administration of the estate. This individual is responsible for managing various tasks, including gathering assets, paying debts, and distributing property to beneficiaries according to the terms of the will or the state's laws of intestacy. Typically this person is either named in the will, or is the decedent's next of kin. The court will appoint a personal representative if family member or interested person is available, interested or capable of serving.

3. Supervised vs. Unsupervised Administration

The probate process can take one of two forms: supervised or unsupervised administration. In supervised administration, the court closely monitors the personal representative's actions throughout the process, requiring court approval for major decisions such as making distributes of estate property to beneficiaries or selling estate property. Unsupervised administration grants the personal representative more autonomy, allowing them to carry out their duties without constant court oversight, and without the need for court hearings to approve the personal representatives decisions.

4. Notice to Creditors

During probate, the personal representative is responsible for providing notice to creditors. This notice serves to inform potential creditors of the decedent's death and allows them to file claims against the estate if they believe they are owed any outstanding debts. The personal representative reviews these claims and settles legitimate debts using the estate's assets. A personal representative must notify all known creditors individually, and publish a notice in a local publication.

5. Creating an Inventory

Part of the probate process involves creating an inventory of the decedent's assets and liabilities. This includes identifying and valuing properties, bank accounts, investments, debts, and any other relevant financial information. The inventory serves as a comprehensive record that guides the distribution of assets and ensures transparency throughout the administration process. The value of the inventory determines what the estate owes the court for the administration of the estate.

6. Administering the Estate

Once the assets, debts, and creditors are identified, the personal representative manages the estate's administration. This involves tasks such as paying debts, resolving disputes among creditors and interested persons, liquidating assets if necessary, filing tax returns, and distributing assets to beneficiaries according to the terms outlined in the will or the laws of intestacy.

7. Closing the Estate

The final phase of the probate process involves closing the estate. This occurs when all debts and taxes have been paid, and the remaining assets are ready for distribution. The personal representative submits a final accounting to the court, detailing all financial transactions and the proposed distribution plan. Once approved by the court, the estate is officially closed, and the personal representative's duties come to an end.

Probate is a legal process that ensures the orderly distribution of a deceased person's estate. While the process can vary depending on jurisdiction and the complexity of the estate, understanding the fundamental steps of probate, such as opening the estate, appointing a personal representative, administering the estate, and closing the estate, can provide clarity and insight for those involved. Working with an experienced attorney can help navigate the complexities of probate and ensure a smooth and efficient administration of the estate.

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