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
- Transfer Real Estate Without Probate With a Lady Bird DeedA Florida Enhanced Life Estate Deed — also known as the “Lady Bird Deed” because President Lyndon Johnson used one to pass property to his wife, Lady Bird Johnson – is an estate planning instrument that allows a property owner to maintain control of his or her real property and avoid probate when it is time to pass the property on to heirs.
- Why Would Probate Be Avoided?Probate is a legal process that serves a purpose, but it comes with some drawbacks.
- What Are My Obligations as Executor?The executor of an estate has many responsibilities. This individual may have been named in the will because the decedent placed particular trust in him or her. Alternatively, the court may have appointed this individual, believing that he or she could fulfill the duties the job entails.
- What Advantages Do Living Trusts Provide?Many people think that trusts are only useful for the wealthy, but this is not the case.
- What Are My Rights as an Executor and Beneficiary?Executors and beneficiaries to a will each have rights and responsibilities as promulgated under state law. Both have important roles in the probate process and mechanisms to ensure that their rights are considered by the court.
- What Are the Grounds to Contest a Will?Because wills provide the final word from a decedent, courts are hesitant to step into the decedent’s shoes and attempt to speculate on his or her intentions. However, heirs may be unhappy with the terms of a will, especially if they are given a small portion of the estate or left out of the will completely. An individual may be able to contest a will if legal cause exists to do so.
- Do Children Have the Right to Inherit?Whether a child has the right to inherit largely depends on whether the person who died has a valid will or not. With a will, the testator determines how he or she wants probate assets handled. Without a will, state laws of intestacy govern.
- Inheritance LawsInheritance laws are determined on the state level. These laws come into effect when the person who died left no will or his or her will is invalidated due to not following legal formalities, being the product of undue influence or duress, the testator lacking the requisite capacity or for other reasons as determined under state law. Additionally, some inheritance laws take effect even if a valid will was left and if the will says something that contradicts state law.
- The Disadvantages of a Living TrustMany financial service providers spout the advantages of a trust, promising that trusts can be used as an asset protection tool and can help your beneficiaries avoid the cost and expense of probate. However, living trusts also carry certain disadvantages with them, which should be carefully considered and weighed against the advantages.
- What Is the Process of Probate?The probate process is the legal process that is undertaken after a person dies. This process helps to identify the individual’s rightful ownership interests, pay off remaining debts and distribute property in accordance with the will or the laws of intestacy. This process involves several stages.
- 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.