What is Probate?

Probate is a Process.

Probate is a process by which we settle the affairs (debts, assets, and property) of an estate before the court. The term probate comes from the Latin probare, “to test or prove.” Probate is simply how we determine who should be in charge of handling the winding up of an estate and where the assets should go.

When someone dies with a will in place the first thing you, as a potential beneficiary, will want to know is what it says. Hopefully, your loved one will tell you in advance that you are a beneficiary or whether you’re a personal representative (executor/trix), and where the will is located. After the will has been read the next step will be to start the probate process. As long as there aren’t any disputes as to the validity of the will nor disputes as to who should be the personal representative then this should be a fairly simple and straightforward process. Here, in Montana, probate normally is started through a filing process with the local clerk of court. This is called “informal probate.” Basically, your attorney will notify (send an “application” to) the clerk of the local district court that Jane Doe has been appointed as the personal representative of said estate and that Jane should be given letters of her appointment as personal representative. The clerk then signs an order appointing Jane Doe and issues letters of appointment. This is how most probates work.


If the person died without a will (something we call “intestacy”) then you (or your attorney) would look under the Uniform Probate Code (which Montana follows) to figure out who should be appointed as the personal representative and who the heirs of the estate should be. As a side note heirs are those who receive assets from an estate without a will and beneficiaries receive assets from an estate through a will.


Now the fun begins. Once Jane Doe has been appointed as the personal representative she will begin the process of locating all the assets of the estate. We might call this “taking an inventory of the estate property”. This can take some time, so it is helpful if the personal representative at least has an idea beforehand of what the assets are and where the assets are located. And, while speaking of assets, some assets do not even go through probate. For instance, if you have a bank account or an IRA with a payable on death (“POD”) designation then those types of assets would go to whoever is designated as the recipient at the time of death. In those instances you would show a copy of the death certificate and those assets would then transfer without the court’s supervision. The same goes for beneficiary deeds (sometimes called “transfer on death deed” or “TOD deed”) and property held in a  joint tenancy with the right of survivorship.


Next, while Jane is locating all of the assets, notice should be given to heirs and creditors. Heirs then can check with the court for information regarding the estate and/or make their objections, if any. Notice to creditors is given in one of two ways. First, for a period of one year from the time of death, creditors have an opportunity to state a claim against the estate. Creditors who fail to do so within that period are barred (in most instances). This is the automatic approach…no extra filing is necessary. The other way to handle potential creditors’ claims is to publish the notice to creditors in the local paper. What this does is it shortens the length of time that creditors can make a claim on the estate to four months from the time of first publication.


Remember, besides paying all the legitimate creditors’ claims, the personal representative should also file and pay the decedent’s taxes and funeral expenses.


After the all the creditors’ claims have been settled and the assets have been distributed, the personal representative can file to close the estate and affirm to the court that all the responsibilities of settling the estate have been accomplished.


In summary, you can save your personal representative and family a lot of trouble by having a professionally drafted will that is clear and easy to follow. Make sure that your assets and debts are easy to find so that nobody has to hire Sherlock Holmes to figure everything out. There’s a bit more to it, but that basically sums it up. I hope this overview will settle your fears about the process and inspire you to prepare so that your probate experience is a smooth one.