Probate is the legal process of proving a will is authentic and valid. Through probate, legal title is passed from the deceased person to the beneficiary. There are several items that do not go through probate such as life insurance, trusts, beneficiary rights on a retirement plan and a few other legal instruments. Following are steps for probating a will.
Find the will. This could be an easy or a difficult task. The will could be in a desk drawer, safe deposit box, at the lawyer's office, in a home safe, or at a trusted friend's house.
Determine whether the person who died owned real property. Real property is anything attached to the ground such as a house or even the ground itself (land). Everything else the deceased person owned is considered personal property.
Determine where your state probates wills. Some states have probate courts while others, like Virginia, do not. If there is a probate court, go there. Other states use the Circuit Court where the decedent's property is located. If no property, go to the county as described in Step 2.
Know the assets owned by the decedent. Have the mail redirected to your house so you are alerted to mortgages, car payments, retirement updates, and other important documents. Searching the house for the place where the decedent kept important documents helps, too.
Request the appointment of an executor or administrator if the decedent didn't specify one to his attorney. Different states call these people different names. Basically, the person who has fiduciary responsibility for the decedent's assets is the executor or administrator.
Make an appointment with the Probate Court or Circuit Court in the correct location. Bring the assets list and approximate values, the original will, and the death certificate.
Seek legal advice from an estate planning attorney or the clerk at the courthouse for more information. The clerk is the gatekeeper in the court. The clerk can be a valuable resource, so start off on a good foot.
Tips & Warnings
- Find out what the filing fees are before you show up.
- Contact the lawyer who drew up the will for more help.
- The will should be probated in the court where the decedent owned real property. If the person did not own real property, it should be probated where the person died or had her residence.
- Generally an executor is someone who the will sets out. An administrator is one who the court appoints when the will is silent or the executor is not willing to serve.
- If the will is in a safe deposit box and you do not have access, then you will have to ask the court for access.