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Probate is the court-supervised legal process that includes fixing the legality of your Will, gathering your assets, paying your debts, taxes, and the expenses of Will administration, and then dividing the remaining assets to those people entitled to them.

To make sure that your property is shared according to your wishes, your survivors will usually refer your Will to probate court. The main advantage of probate is the probate court is supervising the entire proceedings, and the probate laws are being followed. This is especially helpful if there are claims of creditors, challenges to the Will, or disputes that arise from the Will. However, the probate process can be time-consuming and costly. The probate process is also criticized for the loss of privacy surrounding the Will maker's financial affairs.

Without a doubt, things can advance in an orderly and legal fashion if you have a Will at the time of your death. The person you name as executor of your Will becomes the central figure in the probate proceedings. Your executor will carry out the many duties named by law, and the Will you leave will provide the guidelines for the probate process.

The legal term for probate proceedings with a Will is "estate proceedings".

Upon your death, your survivors will decide whether it is necessary and proper to probate your estate. If so, then usually the person you have picked to be your executor will present your Will to the right court, with a petition to the court that will include information about you, your death and your Will. The petition will ask that the court accept the Will as valid and to appoint the executor named in the Will. The court will also review the executor's residency and bond requirements, if any. For example, a Will probated in the Yap State Court must have an executor that is a resident of Yap State. If the executor you appointed in the Will is not a Yap resident, the court may be required to appoint another executor unless you have named an alternative executor in your Will.

Heirs, beneficiaries, and creditors must be told of the admission of the Will to probate and the opening of the estate. After notice, they have a limited amount of time to challenge the Will and/or file claims to the estate. The executor will open a bank account in the name of the estate in which to deposit income and receipts of the estate, and out of which to pay expenses, and make distributions to the beneficiaries.

The initial proceedings will also be when the court considers any challenges to the Will.

The executor plays the key role in the probate proceedings from the beginning. After residency and bond issues are reviewed, and the court officially appoints him or her as the executor (a female is called an executrix). It is up to him or her to collect and inventory the assets of the estate, pay all debts and expenses of the estate, handle and close any current businesses and investments of the estate. Then give out property to the beneficiaries and set up any trusts, if directed by the Will.

It will be the executor's responsibility to notify heirs, beneficiaries and creditors, and open a checking account in the name of the estate.

The executor must review all records to find out all the assets of the estate, and physically take charge of all assets which are subject to probate. After taking charge, the executor must find out the fair market value of the estate property, pay any debts still outstanding, resolve any claims by creditors, and pay the full costs of all expenses incurred in managing the estate. The executor may have to sell some of the estate's assets to pay debts and expenses.

The executor is also responsible for preparing and filing any tax returns and paying any applicable taxes.

Finally, it is the responsibility of the executor to divide the remaining estate assets to the beneficiaries, and to set up and fund any trusts named in the Will.

Closing the Estate

After all the distributions to the beneficiaries and trusts have been made or are nearing completion, a final report must be filed with the probate court. This report summarizes all the receipts and pay-outs of the estate and summarizes all other acts taken by the executor. A copy is provided to the beneficiaries who have the opportunity to object to any items in the report.

If the beneficiaries have no objections, the court will typically approve to close the estate. The beneficiaries will sign receipts showing that they have received their distributions, the executor will file these receipts, and the court will relieve the executor from duty.

There can be large cost involved in probating an estate, so it makes sense to avoid or shorten full probate where possible and proper. Court supervision and its related costs may be unavoidable when:

1. It is necessary to deal with possible claims against the estate or challenges to the Will.
2. When it is necessary to have formal authority to retitle the decedent's assets.
3. And when it is necessary for the court to supervise the activities of the executor.

Probate also involves executor, administrator, and attorney fees. Of course, many executors and administrators who are related to or were friends with the person who died may agree to serve without a fee. Attorney fees must be negotiated as there are presently no state law regulating such fee.

Probate proceedings are lengthy. It can be months or even years before they are concluded. If there are contested matters in the probate, it will lengthen the time to complete the probate. The size of the estate, the identity and location of possible heirs, and the availability of the court may also affect the length of the probate process.

When a Will is admitted to probate, it becomes a public record. Not only does the Will itself become public, but all documents involved in the proceedings become public record and can be viewed by anyone wishing access. Some people have legitimate reasons for viewing this loss of privacy as a negative aspect of probate proceedings.

If you do not leave a Will, then your survivors will petition the courts to appoint an administrator who can be a family member or related to the family. The duties of an administrator will include asset gathering, debt paying, and asset distribution. Because there is no direction from a Will to choose beneficiaries, the court will divide the remaining assets according to state law and Yapese custom. Generally, law and custom give top priority to surviving spouse and surviving children.

The legal term for probate without a Will is "intestate proceedings", and the laws that govern estate distribution are called intestacy laws.

The duration and cost of the regular probate process can be reduced for some small estates that do not exceed a certain value. Applicable state law provides that estates under the value of $1,000 may take advantage of certain procedures to streamline the probate process to distribute estate property.

Life insurance, pension plans, and retirement accounts are payable directly to a named beneficiary, and therefore are neither governed by the Will nor require probate. Also, property owned jointly with survivorship rights passes automatically to the survivor, and is not subject to the Will or probate proceedings.