Probate is the process by which a will is proved by the courts and a personal representative named. If a will is contested, it is done so in probate. Common reasons for contesting a will is if the testator was under duress or forced to sign it or if the testator lacked mental capacity. A will contest can take up time and money, there are ways to have a will be “self proving” and lessen the likelihood of a will contest.
Once the personal representative is named they are charged with gathering up and preserving the assets, putting forth creditors notices, paying valid claims/debts in order of priority, filing a tax returns for the deceased, reimbursements for funeral expenses, paying estate and other taxes. The last thing that happens is the beneficiaries are paid according to the provisions of the will and the estate may be closed.
Formal vs. Informal: Probate may be informal when all the beneficiaries are on board with the personal representatives and sign applicable consent and waiver documents. In an informal probate, there is less need for court supervision, hearings or court orders. On the other hand, the formal probate process includes hearings and court supervision. Formal probate is more expensive, however it may be necessary if there are disagreements amongst heirs or a desire to have court supervision.
A probate is opened by a petition and is closed after there has been proper administration and closing documents are filed and ruled on by a judge. If no dispute exists over an administration a closing statement (informal probate) may be filed by the personal representative and barring any other issues, one year after the filing, the probate is closed. To formally close a probate any interested party may petition the court for a decision and order. The court will hear arguments and review the final accounting of the personal representative. The court may then decide to close the probate if everything is in order.
