What is Probate?
Probate is the legal process of administering the estate of a deceased person, resolving all claims against the estate, and distributing the deceased person's property. If a person dies with a will, these are sometimes called testamentary probate proceedings. If they died without a will, the person is said to have died intestate.
Generally, when one leaves a will behind there is little to take through probate. It is often simply a matter of appointing an executor (sometimes called a personal representative) to administer the estate and see to it that the assets and obligations of the estate are handled according to the directions set forth in the will. However, in some instances, potential heirs or other creditors may challenge the contents of the will, asserting that they are entitled to more than what has been left for them. Under these circumstances, a probate court decides whose claims are valid or not and makes the appropriate adjustments to the final distribution of assets under the probated will. Much as in bankruptcy, potential creditors must be notified of the probate proceeding, but if they fail to make timely claims, or their claims are or lesser priority to those of other beneficiaries or creditors, their claims are extinguished.
When one dies without leaving a will, the probate court is sometimes called upon to distribute the deceased person's assets according to state laws. Again, these proceedings are often handled much like bankruptcy cases, with priorities being established and untimely and inferior claims being extinguished by court order. Generally, after satisfying certain creditors, spouses are entitled to the largest share of a decedent's estate, followed by children, then other close family members.
Uniform Probate Code
In the United States, in order to deal with the often conflicting and contradictory state probate laws, a Uniform Probate Code was suggested. Many states have opted to adopt it, or large portions of it, making the probate process much more uniform between different jurisdictions. However, a few states have not yet adopted its provisions, making it critical to determine which laws may affect the probating of an estate, particularly if there are assets located in multiple states, such as homes.
For more information about probate, visit the resources listed below. Additionally, should you need more information or legal assistance with a probate related issue, you can find an attorney in your area by visiting our Law Firms page.
Know Your Rights!
State Probate Statutes
Probate Law - US
- ABA - Probate Process
Probate is the court-supervised legal procedure that determines the validity of your will. It affects some, but not all aspects of your estate. Non-probate assets, like a life insurance policy, are paid directly to the beneficiary. Upon your death, your will is filed with the probate court and its validity determined. All property, debts, and claims of the estate are inventoried and appraised. All valid claims of the estate are collected, and the remainder is distributed to beneficiaries according to the will.
- American Indian Probate Reform Act
The American Indian Probate Reform Act of 2004 (S. 1721) provides valuable tools to the Department of the Interior, Tribal governments, and individual Indians to facilitate the consolidation of Indian land ownership in order to restore economic viability to Indian assets. The Act amends the Indian Land Consolidation Act and amendments made in 2000.
- Probate Courts Resource Guide
Provides information on the operation of probate courts, as well as on their jurisdiction, administration, practices, and procedures.
- Probate Law - Wikipedia
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 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.
- Probate Process in the United States
The probate process in the United States can be complicated and hard to understand, especially because it varies by county and state. For example, while each state’s probate code will describe their basic probate law, the cases themselves are administered by the county courts and county processes may differ in fees and procedure. Overall, the best way to find out about the probate process in your location is to call your county or state courthouse or contact an attorney.
- Uniform Probate Code
The Uniform Probate Code (commonly abbreviated UPC) is a uniform act drafted by National Conference of Commissioners on Uniform State Laws (NCCUSL) governing inheritance and the decedents' estates in the United States. The primary purposes of the act were to streamline the probate process and to standardize and modernize the various state laws governing wills, trusts, and intestacy.
- Uniform Probate Code - Overview
UPC 1991 essentially repeats UPC 1969's articles on probate procedures (Articles III and IV). These procedures were designed in the 1960s to meet the public demand for quicker and less expensive settlements of decedents' estates. The UPC procedural reforms work very well in the enacting states and have served to reduce delays and public distrust of lawyers and probate courts. This portion of the UPC 1991 enables uncontested estates in probate to be processed with greater safety and as efficiently as estates that are controlled by probate-avoiding living trusts.
Organizations Related to Probate Law
- National College of Probate Judges
The major purposes of the College: To promote efficient, fair and just judicial administration in the probate courts and To provide opportunities for continuing judicial education for probate judges and related personnel. These twin purposes are accomplished through a number of national and regional programs and projects, including conferences, publications and other materials.
Publications Related to Probate Law
- National Association to Stop Guardian Abuse
NASGA was founded in 2006 by several victims. NASGA is now made up of dedicated individuals who have experienced the horrors of guardianship or conservatorship. As former victims or family members of victims, our mission is to end unlawful and abusive guardianship or conservatorship practices.
- Probate Law Journal
The Quinnipiac Probate Law Journal is published quarterly by the Quinnipiac University School of Law in cooperation with the National College of Probate Judges and Connecticut Probate Assembly. The Quinnipiac Probate Law Journal is a practitioner's guide and a source of information regarding probate law to the legal community.
- United States Probate Records
Probate records are court records created after an individual's death that relate to a court's decisions regarding the distribution of the estate to the heirs or creditors and the care of dependents. This process took place whether there was a will (testate) or not (intestate). Various types of records are created throughout the probate process.
Articles on HG.org Related to Probate Law
- Passing the Estate to Nonfamily Members: Expert WitnessIn some situations, a person may wish to pass his or her property to a business partner, friend, church member or other individual outside of his or her own family. Understanding what heirs are and any statutory right to inherit is important. An expert witness can explain the steps that are legally necessary to effectuate this transaction and whether they were or were not present in a specific situation.
- Expert Witness on Testamentary CapacityExperts are often needed when a will must be analyzed either before or after the person has died. Testamentary capacity is regarded as the legal and mental ability of a person to create or change a valid will.
- How Do I Plan My Estate if I Have Property in Different Countries?Estate planning is the process of determining how to treat property upon a person’s death. This process is often complicated if a person has property in different states or countries.
- Property through Intestacy RisksAn estate plan is essential when creating property or structures on land. Without a plan on what may occur when the holder is unable to perform tasks or loses his or her life, there are often severe complications that occur.
- Can You Avoid the Gift Tax in New Jersey?If you have left anything of value in your will to gift to a loved one in the event of your death, then you should be aware that in the State of New Jersey anyone who has lived or owns property there will be subject to inheritance and state estate tax.
- What Are Common New Jersey Real Estate Laws?Whether selling or buying knowing the common NJ real estate laws is important to help you to make the right legal decisions. As the process is stressful enough as it is you do not want to worry about legalities holding up the process. The first thing you need to do if you are selling is get an attorney. The attorney’s job is to review your contract and help you to make any revisions necessary to ensure it is legally binding.
- What Is a Probate Notice in New Jersey?If it cannot be clearly decided as to whom the recipients of a will are then assets will be taken into probate until it is decided how inheritance is to be divided.
- Estate Planning with Revocable Living Trusts to Avoid ProbateProbate is a costly, stressful, time consuming process that many estates must go through upon the death of a loved one. Luckily, with proper estate planning using Revocable Living Trusts, it is absolutely possible to avoid probate. As a Cleveland, Akron area estate planning attorney, we help clients avoid probate and save thousands of dollars on probate fees, reduce the stress and hassle of going to court, and make the loss of a loved one much easier to deal with.
- Undue Influence – When Is a Will or Power of Attorney Considered "Unduly Influenced"?Undue influence can cause a vulnerable person such as an elderly person or individual with cognitive impairment to change his or her will or other financial document. Skilled manipulators may get the elderly person to do their bidding and move away from their natural inclination to provide to certain individuals.
- What is the Value of a Verbal AgreementWhen making a verbal agreement, it is important to understand that these are considered as binding contracts between parties for the specific topic or issue at hand. Even though the matter is not written or completed with the assistance of a legal professional, it is often binding with certain terms or stipulations.
- All Estate Planning Law Articles
Articles written by attorneys and experts worldwide discussing legal aspects related to Estate Planning including: estate and trust, inheritance law, personal property, probate, wills.