What Happens During Probate?

What Happens During Probate?

February 6, 2018

Tanko Law Montana

“Probate” is an ominous sounding term that comes up whenever you have to settle the estate of someone who has passed away. It can be a long and frustrating process, but in the end, all it means is that the courts are making sure your estate is in legal order. We live in a complex society where taxes and property are closely regulated, which can make passing things on to your heirs tricky.


So how does probate work? It all starts with authenticating the will and moving on from there. Learn all about the probate process, what happens at each step of the estate settlement, and why it’s always a good idea to have a probate lawyer.


Starting the Probate Process


The probate process begins as the court authenticates the will of the deceased. If there is a will, the judge will verify its authenticity, and will confirm that it is the most recent and valid will that was signed and filed before the decedent passed away.


The Estate Representative


Every estate must have a personal representative to oversee all of the important affairs. Often, but not always, this will be the person chosen by the decedent to administer their will when the will was written. If there is no will left behind, it will generally be the next of kin, appointed by the court.


Accounting for Assets


At this step, the personal representative must locate and account for all of the assets of the decedent, both those specifically stated in the will, and any others for which the estate will need to account. Generally speaking, anything with real material value is considered an “asset,” from antique furniture to wedding rings and family heirlooms.


Next, the assets, pending circumstances may need to be properly appraised for their value as of the date of death. This can be done by hiring appraisers or using account statements left behind.


Identify Creditors and Pay Bills


The decedent’s creditors will need to be repaid from the estate before any assets are divided. Often, publishing a death notice is required in the local papers to alert creditors. At this point, any creditors have a limited time to make a claim for owed funds against the estate.


Any final bills left behind then need to be paid, including claims from creditors. If a claim isn’t believed to be valid, it can be rejected. At this point the creditor must petition the court to determine its validity.


Income Tax


Now, the final tax returns for the decedent must be prepared and filed by the personal representative. This will reveal whether an estate tax is owed, and any taxes whether personal or estate must be paid from the estate funds. Assets may be liquidated to accomplish this. Normally, the estate has 9 months to pay estate taxes.


Distributing the Rest


Finally, the rest of the estate will be distributed to the beneficiaries. After this is done, the estate can be finally closed.


Working with a Probate Lawyer


The probate process seems simple, but there are a lot of complexities that can arise, and it’s best to have a probate lawyer in your corner to take care of these issues. For example, heirs may challenge the will, claiming the right to certain assets. A creditor may try to collect more than you think they are owed.



The right probate lawyer can make the difference between a stressful and complex process, and a smooth estate closing. Learn more about the probate process, and call Tanko Law for a consultation and help today.

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