Probate

Not to be confused with Probation.

Wills, trusts and estates
Part of the common law series
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Governing doctrines Pour-over will Cy-près doctrine Trusts and conflict of laws Dishonest assistance
Estate administration
Intestacy · Testator · Probate Power of appointment Simultaneous death · Slayer rule Laughing heir · Advancement Disclaimer of interest · Inheritance tax
Related topics
Advance directive (Living will) Totten trust
Other common law areas
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Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A probate court (surrogate court) decides the validity of a testator's will. A probate interprets the instructions of the deceased, decides the executor as the personal representative of the estate, and adjudicates the interests of heirs and other parties who may have claims against the estate.^[1]

Probate Administration

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:

• 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.
• Homestead property, which follows its own set of unique rules in states like Florida, must be dealt with separately from other assets. In many common law jurisdictions such as Canada, parts of the US, the UK, Australia and India, jointly owned property will pass automatically to the surviving joint owner separately from any will, unless the equitable title is held as tenants in common.
• 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. 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.

Etymology

See also: Probative

The etymology of "probate" stems from Latin, old French, and old English words with somewhat different meanings. The earliest definition, dated to 1463, means the "official proving of a will," and originates from the Classical Latin word probatus, meaning "proven" or "a thing proven."^[2] This is the past participle of probāre, which means "to try, test, prove" or "prove to be worthy".^[2] It also traces its roots to the old French word prouwe, dated circa 1175, or prover, and is related to the English word "prove", and the Welsh word "profi" (to test).^[3] The term "probative," used in the law of evidence, comes from the same Latin root but has a different English usage.

Commonwealth

In England and Wales, Northern Ireland, Commonwealth countries (common law jurisdictions), Ireland and in the U.S., probate ("official proving of a will") is obtained by executors of a will while Letters of Administration are granted where there are no executors.^[4]

United States

See also: Uniform Probate Code

In any jurisdictions in the U.S. that recognizes a married couple's property as tenancy by the entireties, if a person dies intestate (owning property without a will), the portion of his/her estate so titled passes to a surviving spouse without a probate.

If the estate is not automatically devised to the surviving spouse in this manner or through a joint tenancy, and is not held within a trust, it is necessary to "probate the estate", whether or not the decedent had a valid will. A court having jurisdiction of the decedent's estate (a probate court) supervises probate, to administer the disposition of the decedent's property according to the law of the jurisdiction and the decedent's intent as manifested in his testamentary instrument. In order to dispose of certain assets in the estate, it is necessary to sell the illiquid assets including real estate. There are exceptions for smaller estates.^{[citation needed]} If the decedent died without a will, known as intestacy, the estate will be distributed according to the laws of the state where the decedent resided or held by the court. If the decedent died with a will, the will usually names an executor (personal representative), a person tasked with carrying out the instructions laid out in the will. The executor marshals the decedent's assets. If there is no will, or if the will does not name an executor, the probate court can appoint one. Traditionally, the representative of an intestate estate is called an administrator. If the decedent died with a will, but only a copy of the will can be located, many states will allow the copy to be probated, subject to the rebuttable presumption that the testator destroyed the will before death.

In some cases, where the person named as executor cannot administer the probate, or wishes to have someone else do so, another person will be named as administrator. An executor or an administrator may receive compensation for his service.

The probate court may require that the executor provide a fidelity bond, an insurance policy in favor of the estate to protect against possible abuse by the executor.^[5]

The representative of a testate estate who is someone other than the executor named in the will is an administrator with the will annexed, or administrator c.t.a. (from the Latin cum testamento annexo.) The generic term for executors or administrators is personal representative.

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.^{[citation needed]}

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.

Avoiding probate

Probate generally lasts several months, and often over a year before all the property is distributed, and can incur substantial court and attorney costs in large estates. One of the many ways used in the US to avoid probate is to execute a living trust. Alternatively property can be passed outside probate by setting up P.O.D (paid on death) designations on bank accounts and T.O.D (transfer on death) on brokerage accounts, 401ks and IRAs that pass automatically to designated beneficiaries, or placing property in joint tenancies with the right of survivorship. As for real estate, a testator may add a named beneficiary to a deed by executing a life estate deed. The property can be passed several generations. The cost of such measures to avoid probate should be weighed against probate court fees, as the administration of a living trust or other arrangement will also incur legal and administrative charges, and as with all trusts is ultimately subject to the supervision of the court.

Avoiding probate does not eliminate estate taxes. Under the federal estate tax law as modified, property held in a living trust, life insurance, payable on death or transfer on death financial instruments, and other property a party receives upon decease of the decedent is included in the definition of a taxable estate.

England and Wales

When someone dies, the term "Probate" usually refers to the legal process whereby the deceased's assets are collected together and, following various legal and fiscal steps and processes, eventually distributed to the beneficiaries of the estate. Technically the term "Probate" has a particular legal meaning but it is generally used within the English legal profession as a term to cover all procedures concerned with the administration of a deceased person's estate. As a legal discipline the subject is vast and it is only possible in an article such as this to cover the most common situations, but even that only scratches the surface.

All legal procedures concerned with Probate (as defined above) come within the jurisdiction of the Family Division of the High Court of Justice by virtue of Section 25 of the Senior Courts Act 1981. The High Court is therefore the only body that is able to issue the documents which give persons the ability to actually deal with a deceased person's estate, such as to enable them to close bank accounts or sell property or shares. It is the production and issuing of these documents, known collectively as "Grants of Representation" that is the primary function of the Probate Registries, which are part of the High Court, to which the general public and probate professionals alike apply to for the Grants of Representation.^[6]

There are many different types of Grants of Representation, each one designed to cover a particular circumstance. The most common ones are those which cover the two most common situations - either the deceased died leaving a valid Will or they did not. If someone left a valid Will then it is more than likely that the Grant will be a "Grant of Probate". If there was no Will then the Grant required is likely to be a "Grant of Administration". There are many other Grants which can be required in certain circumstances and many have technical Latin names but the general public is most likely to encounter these two - the Grant of Probate and the Grant of Administration. If an estate has a value of less than £5,000.00 or if all assets are held jointly and therefore pass by survivorship, for example to a surviving spouse, a Grant will not usually be required.^[7]

The general public can apply to a local probate registry for a Grant themselves but most people use a probate practitioner such as a solicitor. If an estate is small some banks and building societies will allow accounts to be closed by the deceased's immediate family without a Grant, but there usually needs to be less than about £15,000 in the account for them to allow this.

The persons who are actually given the job of dealing with the deceased's assets are called "personal representatives" or "PR's". If the deceased left a valid Will then the PR's will be the "Executors" who are appointed by the Will - "I appoint X and Y to be my Executors etc." If there is no Will or if the Will does not contain a valid appointment of Executors (for example if they are all dead) then the PR's are called "Administrators". So, Executors obtain a Grant of Probate which enables them to deal with the estate and Administrators obtain a Grant of Administration which enables them to do the same. Apart from that distinction the function of Executors and Administrators is exactly the same.

For an explanation of the intestacy probate process in England and Wales, see Administration of an estate on death.

See also

• inheritance

References

1. ^ Glossary of probate terms
2. ^ ^{a b} Harper, Douglas. "probate". Online Etymology Dictionary. http://www.etymonline.com/index.php?term=probate. Retrieved 2007-01-05. 
3. ^ Harper, Douglas. "prove". Online Etymology Dictionary. http://www.etymonline.com/index.php?term=prove. Retrieved 2007-01-05. 
4. ^ Probate faq
5. ^ Warren County, New Jersey Surrogate's office
6. ^ [1]
7. ^ "Probate Info". http://www.tmjlegal.co.uk/wills-trusts-and-probate/probate.php. 

External links

• The Quinnipiac Probate Law Journal - the official scholarly publication of the National College of Probate Judges
• The Connecticut Probate Court Website - providing good state-specific information as well as a link to a widely applicable overview of most Probate Courts' jurisdiction
• List of English and Welsh Regional Probate Registries - Regional Offices for probate information and to register the location of a Will and/or Executor