What is Probate?

Posted by Chris Wendland | Jul 23, 2020 | 0 Comments

                Most simply, probate is the process for handling someone's affairs after they die.  It is a legal process to validate the deceased person's last will and testament, to appoint someone to supervise the estate, and to carry out the will's directives.  If there isn't a will, then state law prescribes how the decedent's estate will be distributed.  In either case, the beneficiaries or heirs of the estate do not receive their shares until the estate's debts and administrative costs have been settled first.

                The process starts when someone files the will for probate or petitions to open an estate.  These actions are taken with the court in the county where the decedent resided or where they owned real estate at death.  The court appoints a personal representative (PR) to be in charge of handing the estate.  For estates with a will (called testate estates) this person is the executor, and for estates where there is no will (called intestate estates), this person is the administrator.  The PR has significant responsibilities to the court and to the estate's creditors and heirs and typically works with an attorney to ensure that they have proper guidance about their duties.

                Handling of an estate is not a cookie-cutter affair.  It can vary greatly depending on creditor issues, ease or difficulty in identifying or selling assets, disputes among heirs, PR's diligence (or lack of it), tax obligations to be satisfied, and other issues.  Generally, an uncomplicated estate without unusual issues can be closed within eight or nine months from the time it is opened.  Other estates can remain open for several years.

             Not every decedent's estate needs to be probated.  An attorney should be consulted to analyze the situation the decedent left at death.  Suitable options could be opening a probate, or accessing specific assets by affidavit or by filing a claim without probate, or taking no action at all.  The proper course has to be assessed on a case-by-case basis.  Oftentimes a simple phone call can sift through the issues.  Please give us a call or complete the contact box on the right side of this page so we can address your questions.

About the Author

Chris Wendland

Chris grew up in South Dakota and has been in Iowa since starting law school in 1992. College in New England and a few years working in a large Silicon Valley law firm provided interesting experiences and perspectives, but there's no place like the Midwest.


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