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
- Inheritance Rights for Legitimate and Illegitimate ChildrenAn important question in inheritance law is whether a child has the right to inherit from his or her parent. A parent can decide in most states whether or not his or her adult children will receive any inheritance from him or her by making a will with these instructions. However, if the person dies without a will, state law dictates whether the children receive an inheritance. The legitimacy of a child can be part of this determination.
- Preparing for Uncomfortable Questions When Making an Estate PlanStudies show that many people do not have a will or other estate planning documents in place even though they need them. Part of this dynamic may be that it is difficult to confront our own mortality.
- Partition of an Inherited Home after ProbateOnce the property from an estate transfers to the heir, it could then face partitioning from siblings or other possible dependents of the estate. The processes that happen after probate could complicate the property use and lead to disputes that end in the sale of an entire lot of land so that everyone involved has a share.
- Passing a Timeshare to HeirsTimeshares hold an interest in a property that is thoroughly divided among the numerous owners that then hold a partial real estate property contractual agreement. In certain cases, the individual that owns the interest in the building may pass on the timeshare to his or her heirs, but he or she may need to consider the state laws where he or she resides as well as the property.
- Who Inherits an Estate When There Is No Will?If a person does not have a will, state law determines who stands to inherit his or her property. These laws are referred to laws as intestate succession. Every state has a series of laws in place to deal with this often common situation. Individuals who do not like the way that the state distributes their property can use the information as a cautionary tale and as an incentive to speak to an experienced estate planning lawyer to create a will.
- Estate Planning Strategies for Grandchildren’s NeedsMany individuals want to provide an inheritance to grandchildren. There may be a variety of situations in which grandchildren’s situations are considered in order to provide an effective estate plan. There are many strategies to provide for grandchildren, depending on the circumstances.
- Should I Make a Will and Trust Part of My Estate Plan?Wills and trusts both serve important roles in estate plans. They serve different functions and may be recommended in different situations. Some individuals only have a will while others only have a trust. Others have both. Talking to an estate planning lawyer can help you determine whether to include these documents as part of your estate plan.
- What Is the Process of Contesting a Living Trust?A living trust (also called an “inter vivos” or “revocable” trust) is a document that allows a person to place his or her assets into a trust during life so that those assets can be distributed to designated beneficiaries by a chosen representative upon death.
- Differences between Guardianships and ConservatorshipsLoved ones who are concerned about a loved one may decide to seek a formal appointment as the individual’s guardian or conservator. Which designation the person seeks will depend on the state where it is granted, the purpose of the appointment and factors specific to the person’s particular situation.
- Prenuptial Plan’s Effect on Estate PlansPrenuptial agreements can impact the effect of an estate plan. This is why it is important to understand the potential implications of a prenuptial agreement before entering into as well as what plans can be made in an estate plan after it has been entered into.
- 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.