Probate is initiated by filing a petition for probate in the Superior Court
of the County in which the decedent resided at the time of death.
Once the petition is filed with the court, a hearing date will be assigned;
then it is the responsibility of the person filing the petition to publish
Notice of Hearing in an appropriate newspaper, as well as sending Notice
of Hearing to all heirs / those named in the will.
In the petition for probate, someone will be nominated as administrator
or executor (depending on whether there is a will; if there is then typically
the executor will be nominated by the decedent).
Assuming that the court finds that all notices have been given as required
by law and that the petition is otherwise adequate, the court will order
the appointment of the administrator or executor.
The administrator or executor must then marshal the assets of the estate
and prepare an inventory and appraisal (a probate referee will be required
to assist in the preparation of the inventory and appraisal if there are
non-cash assets in the estate). Once the inventory and appraisal is complete,
it is filed with the court.
While the inventory and appraisal is being prepared, Notice of the probate
must be sent to known creditors of the decedent, to allow them the opportunity
to file Creditor’s Claims with the court. Each Creditor’s
Claim is either accepted or rejected by the administrator or executor.
If rejected, litigation may ensue between the creditor and the estate.
If accepted, then the creditor will be paid before the estate is distributed
to the heirs or beneficiaries.
Generally, there is a four month period during which Creditor’s Claims
may be filed in the estate. After that four month period, a creditor who
received notice is barred from filing a claim (there are exceptions).
Assuming that the estate is solvent and that there will be assets left
over after payment of the creditors, all taxes have been paid or provided
for, then the estate is in a condition to be closed….
When the estate is in a condition to be closed, a report and accounting
is filed with the court, that details the activities of the administrator
or executor. This includes detailed schedules showing receipts and disbursement
of estate funds.
The attorney for the estate, and the administrator or executor, will ask
for their fees and reimbursement for any costs that they advanced on behalf
of the estate, with the report and accounting.
The report and accounting will be set for hearing by the court. Notice
and typically a copy of the report and accounting will be sent to all
heirs or beneficiaries before the hearing date.
Assuming that there are no deficiencies with notice and that the report
and accounting are technically correct, the court will approve the report
and accounting, awarding attorney fees and administrator or executor fees
at the same time.
After approval, an order is submitted to be signed by the court. The administrator
or executor then makes the distributions, obtaining receipts from each
heir or beneficiary who receives assets from the estate. These receipts
are then filed with the court and the administrator or executor is discharged
from their duties by the court.