Probate

"Probate" is a court proceeding in which final debts are settled and legal title to property is formally passed from the deceased person- called the "decedent"- to his or her heirs. A probate case is filed in the county of the decedent's legal residence at the time of his or her death.

"Probate court"- sometimes referred to as "surrogate court"- is a lower level court in the state system. The clerk of your county court can help you find the right office.

There are usually streamlined - and in some places highly efficient - procedures set up by the local court system to handle the settlement of small estates, or even larger uncomplicated ones. In a few states, the procedure for small estates is so "expedited" that a trip to probate court might not even be needed - but that is because of the small size of the estate, not because of anything about the way the will was written.

Details of the probate process vary greatly by locality, but the following explanation should be helpful.

Usually, the first step is taken by the "executor"- the person named by the decedent in his or her will to process the estate- or another interested person who has the original will.

This person files a "Petition for Probate of Will and Appointment of Executor" or something similar. Some states give out pre-printed forms for this, so people can do at least that much themselves.

If there is no will, somebody must come forward and ask the court to be appointed as "administrator" instead of an executor. Most often, this is the surviving spouse or an adult child, although it might also be another interested person.

The "probate estate" simply refers to any property that's subject to the authority of the probate court. Assets disposed of outside the probate process are part of the "non-probate estate."

After the court decides that the will is genuine and valid, the court issues an order "admitting the will to probate" or some similar proclamation. The County Clerk then records the will. State law might then require public notice of the probate proceeding by the publication of newspaper ads.

Occasionally, however, there might be an objection. For example, somebody might claim that the document being offered to the court is actually a forgery. Or, more commonly, someone claims that the document being objected to was revoked in a later Will. Whatever the objection or claim, it must be brought to the judge's attention.

The judge's order also formally appoints an executor. This appointment gives him or her full authority to handle the decedent's accounts. The Executor is given a certified court document that will be recognized by financial institutions and others, often called "Letters of Administration" or "Letters Testamentary."

A will is a public record, and so is the final settlement and inventory of estate property. As such, these papers may be viewed by anyone.

An executor or administrator:

• Collects, inventories and appraises all assets that are subject to probate
• Pays taxes and creditors
• Pays funeral expenses
• Pays the costs of administration, such as for a lawyer and appraisers
• Formally transfers the estate property according to the will, or by the state laws of "intestate succession" if there is no will

Under state laws, the surviving spouse and/or children are generally allowed what's called a "set-aside" amount, whether or not there is a will. Generally, that comes "off the top" first.

What remains of the estate after these payments are made is available for distribution to heirs and beneficiaries.

Michael Palermo is a Lexington, Kentucky estate planning lawyer and Certified Financial Planner. More information about estate planning can be found on his Web site.

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