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The Basics of Probate: How a Will is Probated and What it Means

Photo of a judge. What happens when a will is probated?

When a person passes away and leaves behind a will, a probate may be needed. Probate is the legal process of validating a will and distributing the deceased person’s assets according to their wishes. In this article, we’ll provide a basic understanding of how a will is probated and what it means for the deceased person’s estate.

What is probate and why is it necessary?

Probate is the legal process of validating a will and distributing the assets of a deceased person according to their wishes. It is necessary to ensure that the deceased person’s wishes are carried out and that their assets are distributed fairly to their beneficiaries. During probate, a court will oversee the distribution of assets (as necessary) and ensure that any outstanding debts or taxes are paid before the remaining assets are distributed. While probate can be a lengthy and sometimes complicated process, it is an important step in ensuring that the deceased person’s wishes are respected and their assets are distributed properly.

Probate vs. Non-Probate Assets: What’s the Difference If a Will is Probated?

When discussing probate, it is essential to understand the distinction between probate and non-probate assets. Probate assets are those that are solely owned by the deceased and require court supervision for transfer to beneficiaries. These typically include real estate, vehicles, bank accounts, and investments held solely in the decedent’s name. Non-probate assets, on the other hand, bypass the probate process and transfer directly to the designated beneficiaries. When a will is probated, it does not change beneficiary designations or who gets  non-probate assets.

Examples of non-probate assets include joint tenancy property, assets held in trust, life insurance policies with designated beneficiaries, and retirement accounts with named beneficiaries. Understanding this distinction helps streamline the probate process and ensures that assets are distributed appropriately.

If a will is probated, who is involved?

The probate process involves several parties, including the executor of the will, the beneficiaries named in the will, and the court overseeing the process. The executor is responsible for carrying out the deceased person’s wishes as outlined in the will, while the beneficiaries are the individuals who will receive the assets. The court will oversee the process to ensure that everything is done according to the law and that the deceased person’s wishes are respected. In some cases, a probate attorney may also be involved to provide legal guidance and assistance throughout the process.

How long does probate typically take if a will is probated?

The length of the probate process can vary depending on a number of factors, including the complexity of the estate, the number of beneficiaries involved, and any disputes that may arise. In general, probate can take anywhere from several months to several years to complete. During this time, the executor will be responsible for managing the deceased person’s assets, paying off any debts or taxes owed, and distributing the remaining assets to the beneficiaries named in the will. It’s important to note that the probate process can be costly and time-consuming, which is why many people choose to create trusts or other estate planning tools to avoid probate altogether.

Executor’s Role in the Probate Process

The executor (or personal representative) plays a pivotal role in the probate process. As the personal representative appointed by the court or named in the will, the executor is responsible for managing the estate’s affairs. This includes locating and securing assets, notifying creditors and beneficiaries, paying off debts and taxes, and distributing assets to the designated beneficiaries. Executors must act diligently and ethically, adhering to the legal requirements and following the instructions outlined in the will. Seeking guidance from an experienced probate attorney can help executors navigate their duties effectively and mitigate potential legal issues.

What happens to the deceased’s assets during probate?

During the probate process, the deceased person’s assets are managed by the executor of their will. This includes identifying and valuing all of the assets, paying off any debts or taxes owed, and distributing the remaining assets to the beneficiaries named in the will. If the deceased person did not have a will, their assets will be distributed according to state law. It’s important to note that some assets, such as life insurance policies and retirement accounts, may not go through probate and will instead be distributed directly to the named beneficiaries.

If a Will is Probated, How to Contest It

If you want to contest a will after a will is probated, it can be a complex and sensitive matter, requiring careful consideration of various legal factors. When someone believes that a will is not valid or that they were unfairly excluded from its provisions, they may choose to contest the will. However, contesting a will is not a decision to be taken lightly, as it can lead to prolonged legal battles and strained relationships among family members. To contest a will, one must have valid legal grounds, such as lack of testamentary capacity, undue influence, fraud, or improper execution of the will. It is crucial to consult with an experienced probate attorney who can assess the merits of the case, navigate the legal process, and guide individuals through the complexities of contesting a will. Understanding the legal considerations involved is essential to make informed decisions and protect one’s rights during the probate process.

Let Us Help You.

Are you currently navigating the probate process for a loved one’s estate and in need of experienced legal representation? Our dedicated team of probate attorneys is here to provide you with the guidance and support you need during this challenging time. With our deep understanding of probate laws and extensive experience in estate administration, we are well-equipped to handle all aspects of the probate process efficiently and effectively. Whether you are an executor seeking assistance with fulfilling your responsibilities or a beneficiary looking to protect your rights, we are committed to providing personalized and compassionate representation tailored to your unique needs. Don’t face the complexities of probate alone—contact our law firm today at 602-443-4888 to schedule a consultation and let us help you navigate the probate process with confidence and peace of mind.




Founding attorney Paul Deloughery has been an attorney since 1998, became a Certified Family Wealth Advisor. He is also the founder of Sudden Wealth Protection Law.