What is Probate?

What is Probate?

Probate is the legal process for administering the affairs (the “estate”) of a deceased person (a “decedent”).

The basic legal theory behind probate law is relatively simple: Once someone has died, there’s no one around to sign checks, close accounts, or transfer titles.  So the court authorizes someone (called the “personal representative” or “executor”) to do those things on behalf of the decedent.

Imagine the following practical example: Bob dies, leaving behind 3 children and a house worth $150,000.  The children want to sell the house and divide the money between themselves.  They hire a real estate agent, who lists the house and secures an offer.  The children then to go closing with the title company, and the title agent asks them where Bob is, since he is the only one who can sign the deed.  Obviously, they have a problem, since Bob is dead and cannot sign a deed.  What they need to do is go to probate, where the judge will sign an order authorizing one of them to sign the deed.  Then that person (called the executor or, more commonly, personal representative) will be able to sell the house, pay the creditors, and distribute the assets to the heirs.

Usually, probate is fairly quick process, so long as no one is fighting over the property or contesting a will.  Because some of the paperwork involved is complicated, many people opt to  pay an attorney to handle it for them.  Hiring an attorney to assist you with filing also allows you to receive advice on the duties and obligations of the personal representative, including obligations to creditors of the estate, how to handle claims against the estate, and how to distribute assets to beneficiaries. For an uncontested probate, we charge a flat fee of $1200.