On numerous occasions I have been asked “what is probate” and what is the process? Quite simply, probate is a process that helps us to conclude a person’s estate after they die. Normally, I’m approached by a child who’s last parent has passed. They have no idea what do. They have heard of this mysterious process called “probate” and have no idea where to start.
The questions regrading probate generally don’t come after the first parent dies because most parents hold their assets jointly or in their entireties which pass to the surviving spouse by action of law upon the first parent’s death, so probate is, generally, not necessary. However, when the second parent dies, the estate must be settled or probated as the assets will need to be distributed either pursuant to directives in a will, which is dying “testate”, or pursuant to to a state statute known as an “intestate” statute, when one dies without a will.
Dying with a Will (testate)
If the individual died with a will, it definitely makes the process easier for the attorney. The will denotes who the executor (male) or executrix ( female) of the will is and that person is responsible for making sure that the decedent’s directive in the will are fulfilled. With the help of the estate attorney, the executor and attorney begin the probate process by going to the local register of wills where the executor is sworn in and the will is registered. The register of wills issues what are known as Letters Testamentary which the executor will used to do such things as close the decedent’s bank account and sell and transfer the estate property, among other things.
In Part II of my blog on Probate I will discuss other aspects of the probate process.