There is a common misconception that if a person has a will when they die, their does not need to be a probate proceeding. Probate is required per person dies with or without a will.

What is probate? Probate is a legal proceeding that must be filed by attorney in behalf of the decedent who has died owning assets. In order for the assets to be transferred to the decedent's heirs and beneficiaries, the estate must be administered in the probate proceeding. Probate proceeding is started by filing a petition for administration. If the decedent had a will the will must be filed with the probate clerk within 10 days of the decedent's death. A personal representative is appointed by the court that is represented by an attorney. An attorney must represent the estate in the probate proceeding.

Probate procedure requires that a notice to creditors is published in any known creditors of the estate are notified. Creditors must file claims within a period of time and the personal representative may file objections. Creditors claims must be paid and contested claims must be resolved by the court before the personal representative can distribute assets to the heirs and beneficiaries as per the will or as per the intestate statute should the decedent die without a valid will. In addition to the notice to creditors of the estate must file a notice of administration. Notice of administration and served on the surviving spouse and the beneficiaries. The notice of administration is not published.

When the administration of the estate is completed except for distribution, the personal representative must file a final accounting unless the final accounting has been waived by the beneficiaries.

Small estates of less than $75,000 in value may be administered by a procedure known as summary administration. Also, if the decedent has been dead for more than two years, a summary administration may be filed regardless of the size of the estate. A petition for summary administration to be filed by the personal representative designated in the will or by a beneficiary.

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