Probate is the court-supervised legal process by which the affairs of a deceased person are settled. The judge of the district court in the decedent’s county of residence has jurisdiction over any probate proceeds that might take place. Probate is the proper forum for challenging any estate distribution, whether one desires to either compel or prevent such a distribution.
Probate is not always necessary, such as when there is little or no property in the decedent’s estate. This may be the result of gifting, by placing assets into a payable on death account, or by titling property as jointly owned with a right of survivorship.
When an estate is small enough that probate costs would no longer be justified, an “affidavit procedure” may be used in substitution. This generally applies to estates that are less than $50,000. However, in order to use this alternative procedure, there must be a showing that no petition for appointment of a personal representative (“PR”) has been made, and there is no real estate to be transferred.
The probate process may be formal or informal. Formal probate is required where a will contest has occurred or is anticipated to occur, and where other disputes are anticipated. Informal probate is a much more efficient, speedy, and more economical method of winding up an estate, and requires much less court involvement.
Either form of probate is initiated by the PR. The PR files an application for Letters Testamentary, and includes the original will. In general, the personal representative is appointed by the court and has the duty of collecting, protecting, and preserving the probate property and other assets of the decedent, as well as paying all debts, claims, and taxes owed by the decedent’s estate. In the event that formal probate is used, a date must be set for hearing the petition for appointment as personal representative, and notice must be sent to all potential heirs, unless the individual heirs waive their right to such a hearing.
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