Probate is not probation. Probate is simply the legal process of transferring property after a person’s death, usually achieved through a court procedure. Probate of a will is required to occur within four years of the date of the person’s death. Spouses don’t automatically take ownership of property and must act within four years in order for a will to be admitted and an administration granted. Should a will not be probated within 4 years, the estate might pass by intestacy to the person’s nearest kin. This isn’t necessarily the surviving spouse, especially if the person has children.
The types of probate are varied but the most common are independent administration, dependent administration, muniment of title, and small estate affidavit. This article will discuss the basic steps that occur when a person dies with a valid will and is eligible for independent administration.
A valid will is a written instrument that expresses “testamentary intent,” or the intent to give one’s property after death, it is signed, and attested by two disinterested witnesses. A person must be at least 18 years old or married or a member of the armed forces of the United States in order to sign a will. A person must also be of sound mind at the time the will is made.
If a person has a valid will at death, the person named as executor in the document starts by hiring an attorney to prepare and file an application for independent administration and to be appointed as executor of the estate. The executor has no power to act on behalf of the estate until granted that power by the court. An executor uses Letters Testamentary to demonstrate that s/he/they are authorized to serve as executor.
Once an application is filed, there is a waiting period to allow others to object to the will. Once the waiting period has passed, the executor attends a court hearing and provides testimony about the statements made in the application. If all is in order, the court will issue an order appointing the executor and outlining the executor’s powers and duties. The letters testamentary are issued after the executor signs an oath of office.
Once the executor has letters testamentary, they are required to notify any creditors the person may have had, notify beneficiaries under the will of the contents of the will and the proceedings, and collect the assets of the estate. The executor is required to prepare and file with the court an inventory of the estate.
Once creditors’ claims are paid, the executor distributes the remaining property to the beneficiaries. This process can take a few months or last for years depending on the complexity of the estate and the speed at which the executor acts.
These are the basics of independent administration. Contact the office if you have specific questions about your loved-one’s estate and set up a consultation to see if we can help.