WHAT IS PROBATE

When someone passes away, whether they have a Will or not, the transfer of their assets to the rightful heirs requires a legal process called Probate. The only exception is if the decedent had a Trust. In that case, all assets held within the Trust bypass Probate and are transferred directly to the beneficiaries named in the Trust without the need for court involvement. If there is no Trust, Probate is necessary.

Probate is the court-supervised process that ensures all interested parties are notified, creditors have the opportunity to be paid, and the decedent’s intended beneficiaries receive their rightful inheritance. The court ultimately grants authority for the transfer of assets and the closure of the Estate.

During Probate, the Personal Representative gathers and takes control of the decedent's assets for safekeeping until they can be transferred to the appropriate beneficiaries. All beneficiaries receive formal notice of the Probate process, including copies of the Will, an inventory of the assets and other relevant documents. The Personal Representative is also responsible for notifying any reasonably identifiable creditors by sending them a Notice to Creditors and publishing this notice in a local newspaper, giving creditors the chance to file claims. Any creditor that is served with a Notice to Creditors has 30 days upon being served with the notice to file a claim with the court. Creditors that are not served with the notice have 90 days from the date of publication of the notice in the local newspaper to file their claims.

In an uncontested estate, once all creditor claims have been addressed (whether by payment, settlement, or dismissal), the beneficiaries can sign Consents and Waivers, allowing the estate to be closed. However, if disputes arise among the beneficiaries or any creditors, it may lead to depositions, hearings, motions, and potentially a trial to resolve the issues.

A Formal Administration Probate requires a minimum of 90 days due to the mandatory creditor waiting period, but if disputes occur, the process can take significantly longer.