In the first instance probate refers to the process of validating a will, and officially appointing an executor to implement it. However, it also includes distributing the assets in the estate to the heirs according to those wishes.
The Probate court confirms the executor nominated in the will. In the event there is no will or the will is invalid, then the Probate Court approves an administrator instead who has similar responsibilities.
The executor or the administrator as the case may be, first locates and secures the assets of the deceased. Then they pay any liabilities of the estate out of that value, before transferring the balance to the beneficiaries entitled to receive it.
Introducing the Probate Process in More Detail
All deceased estates pass through this probate process, whether there is a valid will or not. The executor or administrator is custodian of the assets until they finally distribute them, even if they are the sole beneficiary.
Executing an Estate with a Valid Will
An executor appointed in a will – or other interested third party if there is none mentioned – must take the will to the Probate Court within 30 days unless there is a valid reason.
After the Court has accepted the will is valid, it confirms the appointment of the executor. If it decides the document is not genuine then the deceased died intestate. The executor’s first task is to value the assets of the estate, and report this to the Inland Revenue Service as applicable under law.
The executor then proceeds to settle all liabilities of the estate. This includes creditors, mortgages and other outstanding obligations. Should the executor reject a claim for money owed, then the creditor may approach the Probate Court for a decision.
They must also submit the deceased’s final tax return, and ensure estate and personal taxes are settled within nine months of the death. However, the executor may only distribute the remaining assets when the estate is completely debt free.
Administering an Estate without a Valid Will
Anyone who dies without leaving a will is said to be ‘intestate’ under the law. The same applies if they left a will that the Probate Court decides is invalid. In either case the court appoints an administrator (typically a close friend or family member, or a solicitor) to fulfil the role of executor.
In an intestacy case, there are no nominated heirs and so the law takes its course. A married partner usually has preference, followed by the deceased’s children and other close relatives. However, the administrator must first ensure that the estate is debt free. If there are no apparent heirs then the assets become the property of the state.
Constraints over Executors and Administrators
Executors and administrators are custodians of the estate, even if they stand to inherit the entire value. Therefore, they must act without fear of favour, and in the knowledge they could be liable for any cost of their negligence.
