Probate

September 23, 2011

Probate stems from the Latin word probare meaning “to prove” and derives its usage from the practice in medieval England of heirs having to prove their right of inheritance of land to the king’s court. At that time in history, land conferred wealth and power upon its owner and its transfer was carefully controlled. The early Americans continued the practice of judicial oversight of property transfer but expanded it to include both real and personal property. Today, the term probate generally refers to the laws regarding the process of settling a decedent’s estate under the supervision of the court, and in a broader sense of the word refers to the administration of estates, guardianship, adoptions, and/or trusts with court oversight.

Today, courts charged with oversight of the probate process may be called Probate Court, Surrogates Court, Orphans Court, Chancery Court, Circuit Court, or Court of the Ordinary and may be presided over by a judge, surrogate, or magistrate. These are courts of local jurisdiction, such as a county, parish, or other designated district and are governed by the laws of the state or commonwealth and their own local rules.

The contemporary process of “proving” a will begins with the submission of the will itself to the Probate Court. The will is accompanied by an application or petition to probate the will, which details the name of the decedent and his or her date and place of death. The petition must also include the names and addresses of all interested parties, which may include next of kin, beneficiaries named under the will, and persons otherwise named or mentioned in the will. Those interested parties have a set period of time after the submission of the will in which to object to its validity. If no objections are made, a will is considered to be “self-proved,” if it was executed according to governing law. If objections are made, the Court must then decide the validity of the will.

The Court must approve the appointment of a person to administer the estate. This person is referred to as an executor if named in the decedent’s will to administer the estate, or may be called an administrator or personal representative, if the decedent left no will or the person designated such in the will was unable to serve in that capacity. The Court generally looks to the next of kin to fulfill this administrative role.

The process of estate administration, greatly simplified, includes: the gathering of the decedent’s assets, appraisal and inventory of those assets, payment of the debts of the decedent and costs associated with administering the estate, calculation and payment of estate or inheritance taxes and income taxes, distribution of specific bequests or remaining assets under the terms of the will or as directed by law, and accounting to the Court of the disposition of the assets.

Requirements as to how the administration of an estate is conducted and the time frame in which it must be completed may be dependent on the size and complexity of the estate and vary from state to state, but most states have enacted laws to streamline and simplify this process. Many states have also adopted all or part of the Uniform Probate Code to give some consistency to this process across the country.

“Small” estates, estates with assets whose value is under an amount prescribed by law, may be distributed to the heirs without a formal administration of the estate but must still have the will submitted to Court and have the distribution approved by the Court. This process may be referred to as “relief from administration” or “small estate administration,” or other names. This process is less time consuming and generally less costly than a full estate administration.

Even with the current push to make the probate process easier, many people still seek to avoid probate and its negative associations. These negatives include the Court having authority superior to the family in the probate process, fees paid to the executor or administrator, attorney fees, and court costs. In addition, documents filed in the Probate Court are open to public review. Assets that avoid the probate process are those held jointly with survivorship rights with another person, property titled as “payable on death” (POD) or “transfer on death” (TOD), assets payable to a designated beneficiary, and possessions gifted to others before death. Real and personal property may also be transferred to or titled in the name of a trust, a document designed to specifically direct the use and disposition of the assets it holds. Avoidance of probate by any of the means above may have its own costs and its own negative consequences depending on the individual’s circumstance. Simple wills are still often recommended to “catch” any property not titled or transferred correctly.

Although probate has changed in meaning and scope through the years, it still stands as a means to “prove” and supervise the transfer of a decedent’s estate with judicial oversight and public openness, accessible by persons of all ranges of wealth.

SEE ALSO: Inheritance, Marital status

Suggested Reading

  • Jasper, M. C. (1997). Probate law. New York: Oceana. Ostberg, K. (1990). Probate: Settling an estate: A step-by-step guide. New York: Random House.

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