What Is Probate Court?
Are you facing an end of life situation and suddenly hearing the term “probate,” but you’re not quite sure what it entails?
Probate is the process of transferring the assets of the deceased and closing their financial and legal affairs. When there is a will, it must be proven valid in court. If there is no will, the legal heirs must be proven.
Probate typically encompasses the following steps:
- First, the executor petitions the court for legal representation of the deceased’s estate
- All relevant parties (heirs, debtors) are notified
- Then the assets are transferred per the will and / or state law
- Expenses and taxes are paid
- Distributions are made to any heirs
- Once the court has moved through this process and all is finalized, the executor reports this to the court and a petition is started to close the estate.
What is probate court?
Probate court is a special, state-based court which deals with all aspects of estates and trusts. It may also be called a Surrogate’s Court, Orphan’s Court or Chancery Court.
The probate court oversees the probate process. The court is responsible for determining the validity of the will, for ruling on a petition to open the estate, for reviewing necessary documents (such as the death certificate), and for adjudicating in cases where a dispute arises. The probate court also provides any forms that are necessary to begin the probate process.
The probate court is governed by state probate laws, which specify requirements for various elements of the probate process, such as the number of witnesses required to create a valid will or the appropriate order of inheritance when no will exists.
What does a probate judge do?
Probate judges are civil court judges that mostly adjudicate family and estate matters, including the probate process.
The probate judge’s level of involvement will vary depending on the complexity of the probate, for instance whether there is a valid will and whether an existing will is contested.
In general, the probate judge will open the estate and appoint a personal representative to manage the estate — either the executor listed in the will or an administrator as determined by state law if no will exists. If the estate is uncontested — that is, all interested parties agree to the terms in the will — the judge’s role is relatively minimal. They will sign off on the necessary documents and steps in the probate process, which can proceed in a straightforward manner.
While the judge is the official decision maker, you will most likely interact primarily with the probate clerk. The clerk acts as a judicial assistant and gatekeeper for the probate court. They will schedule hearings, answer the phone when you call, and provide you probate forms.
Bear in mind that while some probate clerks are quite helpful, neither the judge nor the clerk can give you legal advice.
How to Open a Probate Case
In most instances, you can open a probate case without an attorney by filing the appropriate documents with the probate court.
Once you have filed the petition for probate, the court will schedule a hearing and, in most instances, will appoint the executor named in the will or the administrator as determined by state law.
Once probate is opened, the court will schedule dates by which certain actions must be taken and documentation provided to the court — for instance: creation of an asset inventory, notice of probate to interested parties, payment of debts and taxes, and distribution to heirs.
Once all the probate steps are taken, the court closes the probate case.
The process may seem daunting, but we can help you understand exactly what the requirements are in your case and help you file a probate petition without an attorney.
Give us a call or send us a message — we’re here to make the probate process as easy as possible.