What is probate?
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Probate is a legal process where your named executor applies to the Superior Court to accomplish several things. It is to prove that the will is valid and legal, in order to distribute the property to the heirs as the will instructs.
Probate usually works like this: After your death, the person you named in your will as executor -- or, if you die without a will, the person appointed by a judge -- files papers in the local probate court. The executor proves the validity of your will and presents the court with lists of your property, your debts, and who is to inherit what you've left. |
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| Why is Probate necessary? |
The primary function of probate is transferring title of the decedent's property to his/her heirs and/or beneficiaries. If there is no property to transfer, there is usually no need for probate.
Probate can be avoided if the estate does not contain assets that require probate in order to be transferred. When all assets are jointly held, no probate is necessary.
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| How long does Probate take? |
The duration varies with the size and complexity of the estate. Usually, in a straightforward case, it takes approximately 6-8 weeks.
If a Will is contested, or anyone objects to any actions of the Personal Representative, the process can take a long time, even several years to resolve. |
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| What is the probate process of an uncontested will? |
Typically the person named as the deceased's Personal Representative (a more formal term is "Executor" or "Executrix") goes to a lawyer experienced in probate matters who then prepares an application for the court and takes it, along with the Will, and files it with the probate court.
The lawyer for the person seeking to have the Will admitted to probate typically must notify all those who would have legally been entitled to receive property from the deceased if the deceased died without a Will, plus all those named in the Will, and give them an opportunity to file a formal objection to admitting the Will to probate.
If no objections are received, and everything seems in order, the court approves the application. |
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Who is responsible for handling probate?
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| In most circumstances, the executor assumes this responsibility. If there isn't any will, or the Will fails to name an executor, the probate court names someone (called an administrator) to handle the process -- most often the closest capable relative, or the person who inherits the bulk of the deceased person's assets. |
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