How To Understand Probate Court

Probate is the legal process of proving the validity of a will to a court. After the court determines the will is legitimate, the court then gives permission to the executor to execute the will, so assets can be properly transferred to beneficiaries. If there is no will at the time of death, then an "administration proceeding" must be held.

How the probate process begins

To begin a probate proceeding, the executor of the will or an attorney acting on behalf the estate must initiate the proceeding with the local probate court. This is done by submitting an official document called a Petition for Probate of Will to the court. The court will review the will and determine whether or not the will is a valid legal document—that is, whether or not the will is legally binding and was in fact created by you. 

Letters Testamentary or Letters of Administration

If the court determines that the will is valid, the court will then give the executor legal documents called either Letters Testamentary or Letters of Administration. These documents authorize the executor named in the will to distribute assets to beneficiaries named in the will. This may include transferring assets from your name into the names of the beneficiaries and paying any debts or taxes on behalf of your estate.

Probate in more than one state

If you own property in more than one state, it may be necessary to conduct an additional probate proceeding in those states where the other properties are located. This may require the executor to hire a lawyer in both the state of primary residence and the state or states where the additional property is located.

Probate without a will

If you die without a will, your estate will still have to go through the probate process. However, instead of giving your executor the go-ahead to distribute your property according to your will, the court will name an executor (known as an estate administrator) and will tell that person how to distribute your property.

Property distribution without a will

The laws governing how assets are distributed if a person dies without a will vary from state to state. For the most part, though, if you die without a will and live in a community property state and have a spouse but no children, the courts will distribute all your property to your spouse. If you live in a community property state and have a spouse and one or more children over the age of 18, the courts will likely distribute your property equally between your spouse and your adult children. If you are not married, the court will likely attempt to distribute your property in the following order:

  • Your children (or, if they are not alive, their children—your grandchildren)
  • Your parents
  • Your brothers and sisters (or, if they are not alive, their children—your nieces and nephews)
  • Your grandparents (or, if they are not alive, their children—your aunts and uncles)
  • The state you live in

For more information on the way wills work, see our article Writing a Will.

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