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
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- How to Account for Property in Another StateIn todayís mobile world, many people own property that is located in other states. They may own a vacation home or may keep certain personal property in another state than the state where they currently reside. This property must be carefully accounted for in a personís estate plan.
- Contract with a Funeral Home went Against My Wishes, Employer gave Decision, I Donít Understand WhyWhen someone dies, it is important to understand what wishes must be adhered to, and who is responsible for final rights and preparations. This may depend on the state, if an estate plan was in existence at the time of death or if the parents are given the choice.
- What is a Small Estate Administration Process?When a person dies, his or her will is submitted to the probate court. The process that follows includes having the will probated, notifying heirs and creditors of the decedentís passing, paying off debts and distributing the property to the heirs or beneficiaries. This process can often be long, exhaustive and expensive. This is why many people use the small estate administration process.
- When is an Oral Will Valid?In most cases, it is recommended that a will be put in writing. This creates more credibility and indicates more clearly how the testatorís wishes should be carried out. However, in some situations an oral will may be created and enforced.
- Accounting for Digital Assets in Your Estate PlanToday, many individuals own a substantial amount of their assets online or through other intangible means. Failing to account for these digital assets can result in assets not going to their intended beneficiaries and being unable to access accounts after the testatorís death.
- Disinheriting Children in a Last Will and TestamentA last will and testament allows a person to specifically designate individuals whom should receive his or her property. By having a will, the testator can avoid the default rules of the state that determine how much percentage of his or her property different relatives will receive. In this way, the testator can also choose to disinherit an heir.
- Are Handwritten Wills Valid?Because states did not want to make it more difficult for individuals to dispose of their property, many of them allow for handwritten, or holographic wills. While legally valid in many states, handwritten wills do pose potential problems for clients.
- What to Do When Your Loved One Dies Without Leaving You Any InstructionsIt is very common for people to avoid talking about death. Unwillingness to do so can also be greater in certain age groups, or cultures. When a loved one passes away without having a discussion about final wishes and property distribution, survivors can easily feel overwhelmed. Here is how to cope.
- 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.