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 stateís 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
- What Are the Laws of Intestacy?The laws of intestacy are the default rules that are followed to dispose of a personís probate estate after he or she dies. These laws are based on state statute. In order to avoid these laws, a decedent can make a will or otherwise dispose of the assets before or at death, such as through a living revocable trust or a testamentary trust.
- Does My Will Have to Be Witnessed?Wills allow individuals to avoid the stateís rules about who gets what portion of a decedentís estate. They also allow individuals to name their executors, name a guardian for their children and bequeath specific items to certain individuals. However, if a will is not properly executed, the will can be invalidated and the rules of intestacy (dying without a will) can apply.
- Setting up Your Wills and Trusts with an Estate AttorneyIf you or someone you love is planning their estate, it can be a difficult and complicated process trying to wade through all the legal rules and regulations that pertain to writing your will and related documents. Setting up wills and trusts can be especially difficult because the task is often mixed in with a variety of issues such as ill health, complicated family histories, and other emotional dilemmas, which are commonly faced toward the end of a lifetime.
- How Do Inheritance Laws Work?Someone has passed away and that person's friends, family, and loved ones are left to sort out what to do with the things that are left behind. This can include both assets and liabilities. Whether a will was left or not, it is often important to understand how inheritance laws work in order to avoid disputes and keep anyone from being left with nothing but debt.
- What is the Difference Between a Will-based Plan and a Trust-based Plan?Explaining the differences between a Will-based plan and a Trust-based plan so you can make an educated decision for your family about what is best for you and, ultimately, for them.
- It's the New Year, is Your Estate Plan up to Date?Now that the ball has dropped and toasts have been made, did you make a New Yearís Resolution? While many people make resolutions, very few make it their top priority to get their estate plan in order. Even if you have an estate plan in place, situations change - babies are born, marriages are celebrated, loved ones die and divorces happen - these changes merit re-evaluating your estate plan. If you have been procrastinating about estate planning, here are some pointers to get you started.
- New Rules for Estate Recovery in WisconsinIn 2014, the rules regulating the Wisconsin Estate Recovery program were updated to allow Medicaid and other long-term care insurance programs to recover funds from recipients of such coverage after they have passed on by claiming parts of their estates.
- Cost-effective Probate Alternatives When a Person Dies Without a WillIf your loved one passed away without a will, Texas law provides several options for settling the affairs of his or her estate. This article explains several of these options.
- Initial Steps to Take When a Loved One DiesWhen a loved one dies, the last thing that you want to do is to think about business. Having a checklist available during this stressful time can be very helpful and can help you remain calm while you are healing.
- Cut Out of the Will, What Can I Do?Losing someone you were close to is always difficult. But, it can be all the worse when you find that the lost loved one may have cut you out of their will, either intentionally, accidentally, or as a result of someone exerting undue influence over the person before their death. So what can you do it you get cut out of a will?
- 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.