The Probate Process


Probate is a process by which a will of a deceased person is proved to be valid, such that their property can in due course be retitled (US terminology) or transferred to beneficiaries of the Will. As with any legal proceeding, there are technical aspects to probate administration:

Probate validates the Will.

The Personal Representative (PR) known also as the Executor, appraises all the estates assets in order to calculate the value of the total estate.

  • Creditors need to be notified and legal notices published.

  • Executors of the Will need to be guided in how and when to distribute assets and how to take creditors' rights into account.

  • A Petition to appoint a personal representative may need to be filed and Letters of Administration obtained.

  • There are time factors involved in filing and objecting to claims against the estate.

  • There may be a lawsuit pending over the decedent's death or there may have been pending suits that are now continuing. NOTE: There may be separate procedures required in contentious probate cases.

  • Real estate or other property may need to be sold to effect correct distribution of assets pursuant to the will or merely to pay debts.

  • Estate taxes, gift taxes or inheritance taxes must be considered if the estate exceeds certain thresholds.

  • Costs of the administration including ordinary taxation such as income tax on interest and property taxation will be deducted from assets in the estate before distribution by the executors of the will.

  • Other assets may simply need to be transferred from the deceased to his or her beneficiaries.

Steps of probate

Some of the decedent's property may never enter probate because it passes to another person contractually, such as the death proceeds of an insurance policy insuring the decedent or bank or retirement account that names a beneficiary or is owned as "payable on death", and property (sometimes a bank or brokerage account) legally held as "jointly owned with right of survivorship".

Property held in a revocable or irrevocable trust created during the grantor's lifetime also avoids probate. In these cases in the U.S. no court action is involved and the property is distributed privately, subject to estate taxes.

After opening the probate case with the court, the personal representative inventories and collects the decedent's property. Next, he pays any debts and taxes, including estate tax in the United States, if the estate is taxable at the federal or state level, or the Pennsylvania inheritance tax. Finally, he distributes the remaining property to the beneficiaries, either as instructed in the will, or under the intestacy laws of the state.


A party may challenge any aspect of the probate administration, such as a direct challenge to the validity of the will, known as a will contest, a challenge to the status of the person serving as personal representative, a challenge as to the identity of the heirs, and a challenge to whether the personal representative is properly administering the estate. Issues of paternity can be disputed among the potential heirs in intestate estates, especially with the advent of inexpensive DNA profiling techniques. In some situations, however, even biological heirs can be denied their inheritance rights, while non-biological heirs can be granted inheritance rights.

The personal representative must understand and abide by the fiduciary duties, such as a duty to keep money in interest bearing account and to treat all beneficiaries equally. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.

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