What is Probate?

Probate is the legal process of presenting your will to the Circuit Court after your death to authenticate it, get it recorded, and appoint your Executor (if you don’t have a will, the Circuit Court will appoint an Administrator of your estate).  The Circuit Court usually acts through the Clerk of the Court, and a court officer, called the Commissioner of Accounts, who will oversee the process of distributing your will, which includes making sure that the Executor or Administrator provides an accounting of your estate, pays all debts and taxes owed by your estate, and distributes the property in accordance with your will.

Your Executor or Administrator must be appointed by the Court in order to collect and distribute your assets as stated in your will.  However, because it is a legal process, there are many steps that must be followed before your Executor can be appointed.  If you have a will, a beneficiary can still challenge it by appealing the judgment to Circuit Court within 6 months of the Order of the Clerk admitting your will to probate.

If your estate is smaller than $50,000 (not including any real property or any accounts that pass outside of the will or outside intestacy), an Executor or Administrator is not required, but some accounting requirements still apply.

As you can probably tell, even if you have a will, there still many legal requirements that must be followed before your estate can be distributed.

If you do not have a will, your estate will still have to go through probate before your estate is distributed, but the process is much more unpredictable and can be very costly if someone challenges either the appointment of the Administrator, the designation of a beneficiary, or the distribution of an asset.  For these reasons, many people chose to avoid probate, but if all of your heirs agree and your assets are centralized, it can go smoothly, but why leave something so important to chance?