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Probate is the legal process by which a court intervenes to help settle an estate. There are two major paths that lead to probate: administration of the estate or litigation.
When a person dies with a will, the personal representative nominated in the will files the will and other court documents with the probate court to begin the proceeding.
Once the court determines that all heirs have been properly noticed, any bonds have been waived or paid, a valid will exists, and court documents and the death certificate have been submitted, the court will generally appoint the person nominated in the will as the personal representative. The personal representative then begins the process of carrying out the terms of the will. This is the administration portion of the process.
Administration can be either supervised by a court or unsupervised, depending on the case and the people involved. The personal representative will be in charge of collecting and preserving assets, conducting appraisals, finding suitable buyers, paying debts and expenses, and managing estate assets.
Finally, the beneficiaries are awarded their distributions and the case is concluded. When a person dies without a will, the process is similar. A family member petitions the probate court to open a case on the estate and the court will administer the estate according to state laws called “intestacy laws.”
Probate litigation is often pursued when there is a dispute against the estate. Litigation is necessary for will or trust contests, lawsuits filed on behalf of the deceased person, modification of trusts, elder abuse, claims against the estate, claims against trustees or fiduciaries, etc.
The process begins with filing the court documents and opening a civil suit. Hearings and court appearances, discovery, and mediation and/or trial usually are all part of the process.