When a loved one passes away, the matter of their estate must be sorted out promptly. This includes determining whether or not they had their affairs in order in the form of estate planning documents such as a Will or Trust. In many cases, the probate court process will be required and must be initiated as soon as possible. If you are representing your loved one’s estate, then you will be responsible for handling paperwork and attending hearings. This guide will provide an overview of what happens at a probate court hearing so that you know how to best prepare.
What is Probate Court?
Probate is a legal process that determines how a deceased person’s estate should be distributed. Their estate is made up of their assets, property, and personal belongings that haven’t been transferred to a Trust. The process determines how the decedent’s debts should be paid and how their remaining assets should be distributed.
If a Will is available, then their assets will be distributed according to their wishes. If a Will is not available, then the assets will be distributed according to state intestacy laws.
The probate judge also appoints an Executor or Personal Representative who is responsible for attending to the administrative duties of the case. If the decedent had any dependents, the court procedures will also appoint a Guardian.
Probate typically lasts roughly a year give or take, but can take longer if the case is particularly complex. Learn more about the probate process here.
What Happens at a Probate Court Hearing?
The probate process typically involves two probate court hearings, including an initial hearing and final hearing. The initial probate court hearing is scheduled after the estate Executor files the Petition for Probate. Any interested parties of the estate will be notified of the hearing, including heirs and creditors. This is a good time to gather as much documentation as possible related to the decedent’s estate.
At the first hearing, the probate judge will formally appoint the Executor or Personal Representative, provide the Grant of Probate, and instruct the Executor of their duties. They may or may not need to attend the hearing in person.
The Grant of Probate is the key decision of this first hearing. It is required before the Executor can move forward with the probate process by performing their tasks. The judge may require additional information before they’ll open Probate, so be sure to collect as many documents as possible related to the estate. It’s best to contact your respective probate court to find out what type of documentation is required or helpful. In some cases, the estate may be small enough that the judge decides that a full probate process is not necessary. Here, they may instead order a small or expedited estate proceeding.
The judge also appoints a Personal Representative to the estate by issuing Letters Testamentary. Usually, if a Will names an Executor, then this individual or their alternate will be formally appointed to the role. The court may also appoint a Personal Representative if there is no Will, the Will fails to name an Executor, or there is a dispute regarding who should be named. Note that a named Executor does not actually have any authority over the estate until they are formally appointed at this first hearing.
Once the Executor is formally appointed, they can proceed with performing their duties. Here, the Letters Testamentary will lay out the list of tasks that are required to help move the probate process along. For instance, they typically need to have all of the estate assets inventoried and appraised. Some property may need to be liquidated in order to help pay creditors or to follow distribution instructions. Other examples of Executor duties include paying off creditors, filing taxes, and transferring property titles.
When the Executor has completed their duties as instructed, they can then file for final distribution. This will also serve as the request for the second probate court hearing, which can take place roughly nine months to a year after the first petition filing. Estates that are particularly complex take longer to administer, in which case the second filing can be much later.
At this second hearing, the judge will review the Executor’s action items and the current standing of the estate. If they are satisfied, they will issue the final order. This allows the judge to formally close the estate and allow for distributions to be made to heirs. After this final step is completed, the Executor is relieved of their duties and the probate process formally comes to a close.
Who Can Attend a Probate Hearing?
The probate process, and thus the probate hearings, is open to the public. Official court documents related to the proceedings are also made available to the public. This is done so that any individual or entity will have the opportunity to be informed of the death and the estate proceeding and come forward to make a claim. While the proceeding is underway, anyone can challenge the probate petition or the validity of the Will.
This might include creditors or anyone who believes they are a rightful heir of the estate but was not named. Challenging an estate is not uncommon, and an estate attorney can help a client determine how to best proceed. The probate judge will adjudicate any claims on a case-by-case basis.
However, probate hearings are usually a formality and in most cases no one will step forward to challenge the estate in a significant way. It is more common for a creditor to file a claim to have a debt repaid. When all goes smoothly, the probate judge will admit the Will, accept the petition for Probate, and appoint the nominated individual to administer the estate. To ensure a smooth probate proceeding for your estate, it is best practice to have a sound Estate Plan in place.
What to Bring to First Probate Hearing
Each court will have its own requirements for what documents are required for probate. Check with your local county probate division website to find out what documents you must bring.
Otherwise, it is helpful to prepare any and all documentation you can find regarding the decedent’s death and their estate. Examples include their death certificate, Estate Plan documents, and records of their assets and property.
Even if they don’t necessarily come into play at the hearing, these types of documents will be needed at one point or another in the process of settling the estate, so it’s helpful to start gathering and organizing them now. View our full probate checklist here.
Learn More About What to Expect in Probate Court
The probate can be tricky to navigate, especially if it is your first time being named as an Executor of an estate. This is an immense administrative responsibility that you’ve been signed up for, which can be a lot to take on simultaneously while grieving a loss. Here, it’s helpful to understand what happens at a probate court hearing so that you know how to prepare for the big day.
Probate laws and court proceedings differ from state to state and county to county, so while we’ve provided a general overview it’s also a good idea to look into what to expect in your particular state. For instance, if you live in California, be sure to check out What to Expect in a California Probate Court Hearing to get our location-based advice.
If you would like professional help navigating the probate process, we’re here for you! Trust & Will recently launched Probate, which ranges from self-guided, concierge, and attorney level plans to fit your budget. Learn more here today so that you can move forward as your most confident self.
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Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.
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