What You Need to Know About Probate Before Your Loved One Passes

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The legal industry uses the term probate in varying ways. For instance, to ‘probate a will’ means the presentation of a will to the court for filing. The term can also be used to refer to the method that the legal system may use to administer and process your estate after your death. The process can only be carried out by a state court.

You cannot underestimate the importance of the probate system. A properly conducted probate process will help you transfer your estate in a seamless manner. Before your beneficiaries inherit your assets, the legal system supervises the whole process on your behalf to ensure the following:

  • Your estate has settled all outstanding debts.
  • Your estate has paid all tax balances.


Contrary to popular belief, you do not have to have a will in order for a court of law to apply probate on your estate. If a will is present, the probate process will use it to determine who gets what and how minor children are to be cared for. If there is no valid will by the time you pass away, the court will use the laws of your particular state regarding inheritance. The state laws will determine how the court will transfer the estate to your beneficiaries.

When your estate goes through the probate process, the state court follows the following standard steps to oversee and ensure that it has correctly allocated your property.

The court swears in your elected representative.

Typically, a will clearly states the person that should be in charge of an estate in case of death. In such a case, the court has the obligation to swear in the representative, or executor, you specified in your will to represent you. In some situations the court can appoint a representative if the following applies:

  • Death happens unexpectedly before the owner of the estate has drawn a will.
  • The deceased had a will but did not name the person to represent them.
  • Your preferred representative dies unexpectedly or faces situations like sickness which renders them incapable of serving in a court of law.


It is not uncommon for a spouse or the adult child to request the court to appoint them to act as a representative. After a court determines who will act on your estate’s behalf, certified ‘Letters of Administration’ or ‘ Letters Testamentary’ are issued to the personal representative.

The court informs all of your creditors, heirs and the public that you have passed on.

In most states, the law dictates that your personal representative must publish news of your death in the local newspaper. A death notice will notify creditors to file claims for any debts that you might owe. The creditors must file the claims within a specified period.

The court conducts a detailed inventory of the estate.

Carrying out both a personal and real property inventory is crucial. The process is essential because it contributes to evaluating if you left enough assets to cover debts. It also helps the court to account for all the assets in your estate.

The estate pays all outstanding taxes and debts.

In the end, all amounts owed to the creditors and government are paid first. The court then distributes the remaining property to the heirs that you named in your will.

Depending on how complicated an estate is, the probate process can either be straight-forward or very complex. Each state has its own set of probate laws. If the deceased had property in California and Florida, the probate process would be composed of probate directives from the two states.

The probate process only applies to properties that the deceased solely owned. Jointly owned properties and properties the owner already allocated to individual beneficiaries such as life insurance policies fall under non-probate.

While we realize that the probate process can seem confusing to those who may be unfamiliar with legal terminology and procedures, we want to assure you that if you have any questions or concerns when planning your will, Godbe Law Group would be more than happy to provide the answers and assurances you need to properly prepare these important documents. Please feel free to contact us, and we’ll get you started on your estate planning and will preparation.