Probate refers to the process of the court authorizing administration of a person’s estate after his or her death. Estates go through probate whether the person who passed away (known as the decedent) had a will or not.

During the probate process, a few things happen: the decedent’s property (including money) is assessed and gathered; debts are paid; property is distributed according to the will; and if there is no will, property is distributed according to state law on intestacy (dying without a will).

To begin the process, usually an application for probate is filed in probate court. Probate court is a specialized type of court that focuses on wills, intestacy, and disputes arising from distribution of estates. The procedures in probate court vary slightly by county and by state but follow the same general process. After the application is filed and a waiting period has passed, the probate judge usually will hold a hearing. Generally, he will recognize the decedent’s death, evaluate the ability of a person seeking to administer an estate (known as an executor) to do their job, and state whether the decedent died with or without a will.

Often, an executor named in the will or another representative of the decedent files the initial application. If no executor was appointed in a will, someone may apply to be the estate administrator or representative. Most often, courts require that executors be represented by an attorney because of the important duties executors must undertake.

If the decedent left a will, the court will determine whether it is valid under state law. The executor named in a valid will generally is then appointed by the court as the official executor. If there is no will or the will was not valid, the court will need to determine the identity of the decedent’s heirs. Sometimes locating heirs can be difficult, as if the decedent had no living, local family members.

Next, the court makes an assessment of the decedent’s assets and debts. If the decedent owed money to creditors at death, those creditors can file claims to recover all or a portion of the debts. The remaining property will be distributed to beneficiaries listed in the will, if the will was found to be valid, or to heirs determined by the court.

Sometimes, family members argue over inheritance and distribution of assets. For example, a relative who was disinherited may contest a will’s validity. These disputes may arise more frequently if the decedent did not consult a qualified estate planning attorney. The probate court hears and decides such disputes. Once debts are paid, remaining assets are distributed, and disputes are decided, the probate process for the decedent closes.



Attorney Vivian Ross-Bennett knows the probate process inside and out, having served for seven years as a probate court judge. She represents executors, heirs, beneficiaries, administrators, and creditors in Texas probate court in Travis, Hays, and Williamson Counties and select matters in South Carolina. Call Ms. Ross-Bennett today at (512) 330-4099 or email her to set up an appointment.


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