What is Probate?

An overview of the probate process

Last updated: 2 February 2017

Probate is the legal process which gives one or more individuals the authority to act as the executor of an estate.

If you have been named in a will as an executor, you will have to apply to probate court for letters of administration, which show that probate has been granted and you have the legal authority to manage the estate.

You have to have letters of administration before you can start managing the estate according to the will. Managing the estate includes giving out inheritance money and gifts, settling debts, and selling property. Read more about what the role of executor involves.

If no valid will has been left, the probate court will appoint an executor to fulfill these duties.

The probate process

To begin the process of applying for probate, the executor or an attorney acting on their behalf must submit an official legal document with the local probate court. This document is called a Petition for Probate of Will.

The court will then review the will and decide whether or not it is a valid legal document. In cases where the person writing the will was not in their right mind (known as ‘lack of testamentary capacity’), or was forced to write the will (‘coercion’), or the will is suspected to be a fake, the court may rule that the will is invalid.

If the court concludes that the will is valid, the executor will be granted letters of administration, also known as letters testamentary. This document gives the executor the legal authority to manage the estate in accordance with the will.

If the dead person’s estate consists of property in more than one state, you may need to go through different probate proceedings in each relevant state.

Do you need a probate attorney?

Probate attorneys are specialists in the complex laws surrounding wills, probate and inheritance. There are many reasons why you may choose to seek advice from an attorney, including:

  • The estate is very large with many different assets
  • The estate has property in more than one state
  • The total debts of the estate are greater than the total assets
  • The will’s terms are unclear
  • The validity of the will is uncertain
  • The estate includes land and/or property abroad
  • Someone is contesting the will
  • You are unable to give the time and effort to acting as executor
  • Family relationships are difficult and you need an attorney to mediate

Taking on all the legal responsibilities and duties of an executor can be extremely demanding and it is recommended to at least consult an attorney to find out if their services will be of help to you.