FOR LAWYERS

What Is Probate?

Probate is the name of a legal process that encapsulates the tasks that must be done beginning at the death of an individual and concluding with the final distribution of assets. Probate is a process that can take a variety of forms depending on how prepared the estate of the deceased is.

The probate process is overseen by the probate court and includes several fairly routine procedures. The major difference in how the probate process functions are whether the deceased, sometimes referred to as the decedent, passed away with the last will. If the decedent died with a will, then the probate proceedings will first verify the authenticity of the will, then defer to it for most of the decisions about the assets and their distribution. If the decedent did not have a will, they are declared intestate and the probate court becomes more involved.

In either case, the probate court will assess all the debts and assets of the decedent before proceeding. Then, either the will of the decedent is verified, or the decedent is declared intestate. 

If the decedent is declared intestate, then the state law on probate will decide how to proceed. The probate court will appoint an administrator of the estate and the process will go forth. For 16 states, the Uniform Probate Code will decide how assets are distributed. The Uniform Probate Code was a 1969 initiative that sought to simplify the probate process for average citizens. While all states have adopted some parts of the Uniform Probate Code, the 16 states that have adopted it in its entirety are:

  • Alaska
  • Arizona
  • Colorado
  • Florida
  • Hawaii
  • Idaho
  • Maine
  • Michigan
  • Minnesota
  • Montana
  • Nebraska
  • New Mexico
  • North Dakota
  • South Carolina
  • South Dakota
  • Utah

This simplified process allows the court to process the estates of decedents more efficiently, expediting the time in which beneficiaries receive the assets of the decedent.

Key Takeaways

  • Probate is the legal process of accounting and distributing the assets of a decedent following their death.
  • The probate process is overseen by the probate court who hears disputes and settles with the decedent’s creditors.
  • If the decedent had a last will, the probate court will defer to this document. Otherwise, the court will follow state law for the distribution of assets.
  • If you want to establish a last will to avoid dying intestate and subjecting your estate to the whims of the probate court, an experienced Trusts & Estates attorney may be able to improve the outcome of your case by utilizing experience and expert knowledge.

Probate, Trusts, and Estates

After a decedent passes away, their estate is placed in the hands of the probate court. Also known as the surrogate’s court, orphan’s court, or chancery court, probate court exists to deal with the property and debts of a decedent. 

The primary objective of a probate court judge is to ensure that the decedent’s creditors are paid, while then allowing the remainder of the estate to pass to the decedent’s beneficiaries. Probate courts also hear challenges to the will of the deceased or contestation of a beneficiary’s share of the estate.

For example, all states have a law that dictates that a surviving spouse is entitled to a varying share of the decedent’s assets. This principle, known as the surviving spouse’s elective share, supersedes even a will and can be enforced by the probate court.

Some of the routine procedures of the probate court include:

  • Proving to the court that the last will of the decedent is authentic and legally valid.
  • Properly identifying and inventorying all assets that the decedent is the owner of.
  • Appraising the value and condition of any of the decedent’s property.
  • Paying out any debts or taxes that the decedent owed.
  • Distributing the assets of an intestate decedent according to state law.

Throughout this process, the probate court will either work alongside the executor of the decedent’s estate named in the will or appoint an administrator to do the executorial duties on the court’s behalf.

Executors are the most involved party with the probate court as they prepare the decedent’s estate for distribution. The executor will frequently need to go to the clerk’s office for forms, instructions, and information regarding the specific probate process of their county. Since the probate process can vary by state or even by county, executors handling a will in an unfamiliar area may want to consult with or outsource much of the process to a trusts & estates attorney.

Bottom Line

The probate process can be long, involved, and sometimes counter to the wishes of the decedent. If you want to ensure that the probate court respects your wishes regarding the distribution of your assets, you will need a trusts & estates attorney.

An experienced trusts & estates attorney can not only craft an ironclad last will that will pass probate court muster, but they can also serve as an executor after your passing. By utilizing their extensive experience in the local, state, and federal probate laws, a trusts & estates attorney can secure an improved outcome for your estate processing.

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