Typically, a Petition is filed in superior court seeking to admit a Last Will and Testament into probate. This Petition seeks appointment of the Personal Representative which is usually the person named in the Will. It also seeks “non-intervention powers” meaning the Personal Representative can act without seeking court approval for every action and seeks issuance of “Letters Testamentary.” If only a copy of a Last Will and Testament exists, there is a process for admitting this document into probate which requires demonstrating that it is an authentic copy of a deceased person’s original Will. If no Will exists (intestate), the Petition opening probate will seek appointment of an Estate Administrator and issuance of “Letters of Administration.” This Petition must usually also establish that the Estate is solvent.
Notice of this Petition is typically required to be given to each potential beneficiary (heir) of the Estate. If a person is named in the Will to serve as Personal Representative, they may be able to open a probate action and receive appointment of the court and then provide notice to beneficiaries. If the person seeking appointment is not appointed in the Will, notice of the Petition is typically required to be given to beneficiaries before appointment, giving those interested individuals an opportunity to appear at a court hearing admitting the Will into probate and appointing the Personal Representative.
Following appointment of the Personal Representative (or Administrator) it is typically required that notice of the probate action be published in a local newspaper, giving creditors notice and opportunity to make claims to the Estate for debts owed by the deceased. If a creditor is known to the Estate, they may also be required to send notice directly to the creditor. If the creditor fails to make a formal claim to the Estate for debts owed, they lose the right to collect these debts after a specified time period.
The Personal Representative will also be required to begin identifying and consolidating all assets of the Estate. This consolidation process usually requires opening a bank account for the Estate and placing all Estate funds into the account. All debts of the Estate should be paid out of this account in order to provide accountability should the actions of the Personal Representative be challenged by other heirs. Once all financial accounts and assets of the deceased are identified and consolidated, the Personal Representative can begin distributing assets to the beneficiaries of the Estate, reserving enough funds to ensure that all debts are paid. If real property is involved, the Personal Representative will be responsible for either selling the property or transferring title to the appropriate heir or heirs.
It is the responsibility of the Personal Representative to safeguard all assets of the Estate, and they may be held personally responsible for a failure to safely and properly secure assets. Included in this obligation is a requirement that the representative maintain proper insurance coverage on assets which protect the assets from theft, damage, etc. during the pendency of the probate proceedings.
The Personal Representative will also work with an attorney to create an “inventory” of the Estate, which is a list of all assets and all debts of the Estate. This document is required to be compiled and kept in the probate files, but it is typically not required to be filed with the court. If a beneficiary requests a copy of the inventory, the representative must be able to produce this document.
The Personal Representative may also be responsible for overseeing any legal claims on behalf of the Estate. This could include claims for monies owed to the Estate or claims for wrongful death on behalf of the deceased.
When all debts have been paid, all necessary tax filing are accomplished, and all the assets of the Estate have been distributed to the appropriate beneficiaries, the probate action can be closed. Typically, this is accomplished by filing a notice of closing with the court which is provided to all beneficiaries. If a beneficiary feels that the probate should not be closed, they have a certain amount of time to bring this concern to the court.