First, “probate” describes the procedure of allocating the assets and settling the debts of a person who has died. This process is overseen by a separate court (which may, depending on the jurisdiction, be known as orphan’s court, chancery, or probate court). A probate court establishes whether a will is valid, identifies any heirs, pays any debts (including taxes), and distributes any estate’s assets, whether or not its owner had a will.
The process begins when the estate’s executor (if the deceased had a will) or a family member or associate (if the deceased did not have a will) contacts the court. If a will does not identify an executor, the court will appoint an administrator (e.g. a spouse or child). The executor or administrator conducts an inventory of the estate, which is filed with the court. Then, the executor/administrator reviews any outstanding bills the deceased may have had and pays them out of the estate. Once debts are paid, the executor/administrator allocates the remaining assets in accordance with the will (or as relevant law directs in the absence of a will). The executor/administrator must account for these distributions to the court.
The probate court oversees each step of this process (which may be time-consuming) and provides resolution. The court also helps resolve any conflicts that arise concerning the validity of the will or the allocation of assets. Probate courts can be helpful in providing certainty and clarity at a difficult moment because, after all, settling an estate is no joke.
Kathleen Davies is a Staff Writer for GetLegal.com. She is a graduate of the University of Michigan Law School and has practiced law and taught legal writing and advocacy.