The probate process can be overwhelming, especially for loved ones who have become personal representatives in a probate case. Here, we’ll define probate and clarify the steps of this legal process. After all, knowledge is power, so we’re here with the knowledge you need to navigate probate with ease.
Defining Probate
Probate is defined as the legal process of verifying a last will and testament (if one was created by the decedent) and transferring the decedent’s estate to devisees or heirs. By the end of the probate process, the decedent’s assets should be fully distributed to their proper beneficiaries. Devisees are asset recipients specified in the will, while heirs are asset recipients determined by law.
As a court-supervised process, probate is an involved operation that’s subject to various state laws. States can vary in their legal requirements for determining the conditions to probate an estate.
Probate can still be required if the decedent didn’t create a will. In this case, probate is necessary to officially distribute the estate, as well as pay any final bills owed by the decedent.
Formal vs. Informal Probate
Depending on the size of the decedent’s estate, you may not need to undergo the full probate process. If an estate is considered a “small estate”, you may go through informal probate, which can be completed without ever stepping foot in a courthouse.
The definition of a small estate varies from state to state. In Colorado, a small estate is valued under $50,000 and includes no real property.
The Probate Process
Probate isn’t simply the act of handing off the decedent’s assets. Several steps are included in the probate process to ensure that the decedent’s estate is properly and officially distributed. Also, the personal representative appointed to the probate case must be present every step along the way to ensure that the process is carried out – and documented – properly.
Probate: Step by Step
- Verify the last will and testament.
A court hearing is held to authenticate the decedent’s last will and testament. If the will can’t be validated, the court rules that the decedent died intestate. This means that the case will be treated as though the decedent didn’t create a will.
- Assign a personal representative.
The court will appoint a personal representative. In this role, an individual is essentially acting on the behalf of the decedent to close out their affairs and deliver their assets to the rightful beneficiaries. The personal representative may or may not be supervised by the court during the probate process. Regardless, the personal representative is treated as a fiduciary, or trustee, relating to the distribution of the decedent’s estate.
A personal representative in a probate case is expected to act impartially, prudently, and loyally. In this role, you may or may not choose to be compensated for your work, but should record the time spent on personal representative duties regardless.
- Post bond.
At this point, you may be instructed by the court to post a bond. A bond is like a type of insurance protection against losses to the decedent’s state, caused by you as the personal representative. Note that estate funds can be used to cover the cost of the bond, and the bond required in your probate case will be contingent on the breadth of the estate.
The decedent’s will may state that no bond is needed. If the will doesn’t mention a bond, the probate judge decides whether or not it’s needed.
- Manage the estate assets.
Estate management during the probate process involves several tasks, including:
- Locating assets.
- Establishing date of death values.
- Notifying creditors.
- Paying outstanding debts.
- Filing taxes.
These tasks must be completed for assets to be legally and officially released to the beneficiaries. Keep in mind that this will be a months-long process so that creditors have ample time to make claims.
- Close the estate and distribute the estate to rightful beneficiaries.
Once the creditor claim period has ended, all debts have been paid, and all taxes have been filed, it’s time to close the estate. At this time, you’ll distribute the estate assets to the rightful beneficiaries and provide an accounting of your actions to the court.
Once the estate is closed, you’ll be relieved of your personal representative responsibilities.
