probate

1. The process of legally establishing the validity of a will before a judicial authority.
2. Judicial certification of the validity of a will.
3. An authenticated copy of a will so certified.

To establish the validity of (a will) by probate.

Of or relating to probate or to a probate court: probate law; a probate judge.

[Middle English probat, from Latin probātum, neuter past participle of probāre, to prove. See prove.]

The legal process in which a will is reviewed to determine whether it is valid and authentic. Probate also refers to the general administering of a deceased person's will or the estate of a deceased person without a will. The court appoints either an executor named in the will (or an administrator if there is no will) to administer the process of collecting the assets of the deceased person, paying any liabilities remaining on the person's estate and finally distributing the assets of the estate to beneficiaries named in the will or determined as such by the executor.

Investopedia Says:
Because of the costs of court involvement in the probate process and the potential for involvement of lawyers who collect fees from the estate of the deceased, many people try to minimize costs associated with the probate process. There are tremendous legal and tax complexities in the probate process, so it is advisable to have a will and speak with a lawyer and financial professional in order to insure that your loved ones are not left with the complicated and often messy task of distributing the assets of your estate upon your passing.

Related Links:
Making a careful choice now can save your heirs from a lot of problems later. Choose The Right Executor
Don't let bad estate planning lead to unnecessary costs and stress for your inheritors. Skipping-Out on Probate Costs
This arrangement allows you to have more control over your estate - both before and after your death. Establishing A Revocable Living Trust
Estate planning is not just about the division of assets after you die. Read on to save your loved ones extra grief. Three Documents You Shouldn't Do Without
Don't trust the courts to follow your wishes - plan the distribution of your own assets. Why You Should Draft A Will
With some preparation, you can save your heirs from paying a hefty estate tax. Here are some tips. Getting Started On Your Estate Plan
Decrease the value of your taxable estate and prevent the taxman from getting you one last time. Shifting Life Insurance Ownership
Learn about a strategy that could help you reduce taxes, diversify your portfolio and generate income. Saving Money With A Private Annuity Trust

Validation of a will by a probate court, followed by the appointment of an executor or administrator. A probate court also is known as a court of probate, surrogate's court, ordinary court, or prefect's court. Validation of a will as authentic is the first step in the settlement of an estate. Most states require that a will be signed by at least two witnesses before it can be accepted as a valid document.

For more information on probate, visit Britannica.com.

The court process by which a will is proved valid or invalid. The legal process wherein the estate of a decedent is administered.

When a person dies, his or her estate must go through probate, which is a process overseen by a probate court. If the decedent leaves a will directing how his or her property should be distributed after death, the probate court must determine if it should be admitted to probate and given legal effect. If the decedent dies intestate — without leaving a will — the court appoints a personal representative to distribute the decedent's property according to the laws of descent and distribution. These laws direct the distribution of assets based on hereditary succession.

In general, the probate process involves collecting the decedent's assets, liquidating liabilities, paying necessary taxes, and distributing property to heirs. Probate procedures are governed by state law and have been the subject of debate and reform since the 1960s. The Uniform Probate Code (UPC) was first proposed in 1969 by the National Conference of Commissioners on Uniform State Laws and the House of Delegates of the American Bar Association. The prime focus of the UPC is to simplify the probate process. The UPC, which has been amended numerous times, has been adopted in its entirety by sixteen states: Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota, and Utah. The other thirty-six states have adopted some part of the UPC but still retain distinct procedures.

Probate of a Will

The probate of a will means proving its genuineness in probate court. Unless otherwise provided by statute, a will must be admitted to probate before a court will allow the distribution of a decedent's property to the heirs according to its terms.

As a general rule, a will has no legal effect until it is probated. A will should be probated immediately, and no one has the right to suppress it. The person with possession of a will, usually the executor or the decedent's attorney, must produce it. Statutes impose penalties for concealing or destroying a will or for failing to produce it within a specified time.

Probate proceedings are usually held in the state in which the decedent had domicile or permanent residence at the time of death. If, however, the decedent owned real property in a another state, the will disposing of these assets must also be probated in that state.

To qualify as a will in probate, an instrument must be of testamentary character and comply with all statutory requirements. A document is testamentary when it does not take effect until after the death of the person making it and allows the individual to retain the property under personal control during her or his lifetime. A will that has been properly executed by a competent person — the testator — as required by law is entitled to be probated, even if some of its provisions are invalid, obscure, or cannot be implemented.

A will made as a result of fraud or undue influence or a will that has been altered so that all its provisions are revoked will be denied probate. If the alteration only revokes certain provisions of the will, the remaining provisions can be admitted to probate.

All separate papers, instruments, or sheets comprising the most recent of a testator's wills will be admitted to probate. Where a later will does not explicitly revoke all prior wills, two separate and distinct wills can be probated. Probate courts seek to carry out the declared intention of a testator regarding the disposition of property, and they resort to distributing property according to the law of descent and distribution only where no reasonable alternatives exist.

As a general rule, the original document must be presented for probate. Probate of a copy or duplicate of a will is not permitted unless the absence of the original is satisfactorily explained to the court. If a properly proved copy or duplicate of a will that has been lost or destroyed is presented to the court, it may be admitted to probate. Some states have special proceedings to handle such occurrences. A thorough and diligent search for the will is necessary before a copy can be probated as a lost will.

A codicil, which is a supplement to a will, is entitled to be probated together with the will it modifies, if it is properly executed according to statute. If it is complete in itself and can stand as a separate testamentary instrument independent of the will, the codicil alone can be admitted to probate. A codicil that has been subsequently revoked by another codicil is not entitled to probate.

A will made in a foreign language will be admitted to probate if the testator understood what it contained and it otherwise complies with other statutory requirements. A translation usually must accompany the will.

Proceedings

A probate proceeding may involve either formal or informal procedures. Traditionally, probate proceedings were governed by formal procedures that required the probate court to hold hearings and issue orders involving routine matters. Consequently, the legal costs of probating an estate could be substantial. States that have adopted the UPC provisions on probate procedures allow informal probate proceedings that remove the probate court from most stages of the process, with the result that informal probate is cheaper and quicker than formal probate. Most small estates benefit from an informal probate proceeding.

The probate process begins when the executor files with the clerk of the probate court a copy of the death certificate along with the will and a petition to admit the will to probate and to grant letters testamentary, which authorize him or her to distribute the estate. Although the executor usually files the probate petition, it can be filed by any person who has a pecuniary interest in the will. In states governed by the UPC, the executor must elect whether to proceed with formal or informal probate at the time of filing. However, a probate proceeding may be switched from informal to formal during the course of administration, if issues so warrant.

In a formal probate proceeding, a hearing must be held to establish the death of the testator, the residency of the decedent, the genuineness of the will, its conformance with statutory requirements for its execution, and the competency of the testator at the time the will was made. These requirements are usually fulfilled by the attesting witnesses who were present at the time the will was made and who certify that it was properly executed. The number of attesting witnesses is prescribed by law. If fewer than the required number witness a will, it will be declared void, and the testator's property will pass according to the laws of descent and distribution.

When some or all of the witnesses to a will are unavailable, special steps are taken. If the required witnesses have died before the testator, the person offering the will must offer proof of death, in addition to evidence of the genuineness of the signatures and any other proof of execution available. The UPC simplifies witness issues by permitting the admission of "self-authenticating" wills. These wills contain a statement signed by the witnesses that attests to the competency of the testator and other statutory requirements. Self-authentication relieves the witnesses of the burden of appearing in court and the executor of costly procedures if the witnesses are unavailable.

If no one objects to the will at the hearing, it will be admitted to probate.

Informal probate proceedings generally do not require a hearing. The executor files the death certificate and will, along with a petition to admit the will under informal probate. The clerk of probate court reviews the submissions and recommends to the court that the will be probated. Once the court issues the order for informal probate, the executor files a series of forms that demonstrate that notice has been given to all interested parties about the probate, the decedent's creditors have been paid, and the estate's assets have been collected, appraised, and distributed to the designated heirs.

Contested Probate Proceedings

The probate of a will can be opposed or contested on the ground that the instrument is void because of the testamentary incapacity of the testator at the time the will was made, the failure to comply with the formalities required by law, or any matter sufficient to show the nonexistence of a valid will. When a will is contested, formal proceedings are required.

Will contests are concerned only with external validity, such as failure of due execution, fraud, mistake, undue influence, lack of testamentary capacity, or lack of intent that the instrument be a will. Issues of internal validity, such as violation of the rule against perpetuities, must be raised in proceedings at a later stage of administration. Although a will has been probated as a genuine expression of the testator's intended distribution of property upon her or his death, the estate might be disposed of according to the laws of descent and distribution if the testamentary provisions violate the law.

Only a person having some interest that will be affected by the probate can contest it. Such persons include next of kin who will receive property if the will is set aside and intestacy results, purchasers of property from the heir or heirs, administrators or executors under prior wills, and the state, if there is a possibility of escheat, which means that the government will receive the property if no living heirs can be found. Creditors, however, generally are not entitled to contest the will of a debtor.

An executor must defend the will against attack and must employ his or her best efforts to have it sustained if he or she reasonably believes that the will is valid.

Methods by which a will can be contested generally include a contest in the court having jurisdiction over probate, an appeal from the order granting or denying probate, and separate actions to set aside the order granting or denying probate.

There is no constitutional right to trial by jury in probate or will contest proceedings. Most states, however, have statutes making a trial by jury available in a will contest. Statutes usually impose time limits on the institution of will contests.

Agreement Not to Contest

A testator can enter into a contract with her or his heirs in which they agree not to contest a will. If the contract is supported by consideration — something of value — and the agreement is otherwise valid, the heirs will be prevented from contesting the will. The beneficiaries under a will and the heirs can enter into a valid contract not to contest a will. States vary as to the remedies a party to an agreement not to contest a will has upon breach. These include an injunction against the prosecution of the contest, an action at law for damages, or a defense to the contest.

An agreement among heirs and beneficiaries not to contest a will is a way to avoid a costly will contest proceeding. The heirs and beneficiaries negotiate a settlement that may defeat the intention of the testator in how the assets are distributed. A settlement will be valid if all interested parties agree, but it must not exclude anyone entitled to property under the will. Under some statutes the compromise or settlement must be submitted to the probate court for approval.

Guardianship of Minor Children

Wills often contain instructions on who should be appointed legal guardian of the decedent's minor children. The probate court may investigate the qualifications of the proposed guardian before granting an order of appointment. When a will does not contain a guardianship provision, the court itself must determine, based on the best interests of the children, who should be appointed guardian.

Right of Review

A right of appeal from a probate decree is given to any person who would suffer a direct financial loss as a result of the decree. The appellate court is restricted to a consideration of the questions presented to and determined by the lower court. An issue not presented to the probate court usually will not be considered.

See: estate and gift taxes; executors and administrators.

Wills, trusts and estates

Part of the common law series

Wills

Legal history of wills Joint wills and mutual wills Will contract · Codicil Holographic will · Oral will

Sections Attestation clause Residuary clause Incorporation by reference

Contest Testamentary capacity Undue influence Insane delusion · Fraud No-contest clause

Property disposition Lapse and anti-lapse Ademption · Abatement Satisfaction of legacies Acts of independent significance Elective share · Pretermitted heir Wills and conflict of laws

Trusts

Express · Resulting Constructive

Common types Bare · Discretionary Accumulation and Maintenance Interest in possession Charitable · Purpose · Incentive

Other types Protective · Spendthrift Life insurance · Remainder Life interest Reversionary interest Testamentary Honorary · Asset-protection Special needs (Supplemental Needs)

Governing doctrines Pour-over will Cy-près doctrine Trusts and conflict of laws

Estate administration

Intestacy · Testator · Probate Power of appointment Simultaneous death · Slayer rule Laughing heir · Advancement Disclaimer of interest · Inheritance tax

Related topics

Advance directive (Living will) Totten trust

Other common law areas

Contract · Tort · Property Criminal law · Evidence

v • d • e

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.

Contents 1 Etymology 2 Commonwealth 3 U.S. 3.1 Steps of probate 3.2 Avoiding probate 4 England and Wales 5 References 6 External links

Etymology

See also: Probative

The etymology of "probate" stems from Latin, old French, and old English words with somewhat different meanings. The earliest definition, dated to 1463, means the "official proving of a will," and originates from the Classical Latin word probatus, meaning "a thing proved".^[1] This is the past participle of probāre, which means "to try, test, prove" or "prove to be worthy".^[1] It also traces its roots to the old french word prouwe, dated circa 1175, or prover, and is related to the English word "prove", and the Welsh word "profi" (to test).^[2] The term "probative," used in the law of evidence, comes from the same Latin root but has a different English usage.

Commonwealth

In England and Wales, Northern Ireland, Commonwealth countries (common law jurisdictions), Ireland and some states in the U.S., probate ("official proving of a will") is obtained by executors of a will while Letters of Administration are granted where there are no executors.^[3]

U.S.

See also: Uniform Probate Code

This article relies largely or entirely upon a single source. Please help improve this article by introducing appropriate citations of additional sources. (October 2007)

In the jurisdictions in the U.S. that recognize a married couple's property as community property or as tenancy by the entireties, if a person dies intestate, his/her estate passes to a surviving spouse without a probate.

If the estate is not automatically devised to the surviving spouse, it is necessary to "probate the estate", whether or not the decedent had a valid will. A court having jurisdiction of the decedent's estate (a probate court) supervises probate, to administrate the disposition of the decedent's property according to the law of the jurisdiction and the decedent's intent as manifested in his testamentary instrument.

The will usually names an executor (personal representative), a person tasked with carrying out the instructions laid out in the will. The executor marshalls the decedent's assets. If there is no will, or if the will does not name an executor, the probate court can appoint one. Traditionally, the representative of an intestate estate is called an administrator.

In some cases, where the person named as executor cannot administer the probate, or wishes to have someone else do so, another person will be named as administrator. An executor or an administrator may receive compensation for his service.

The probate court may require that the executor provide a fidelity bond, an insurance policy in favor of the estate to protect against possible abuse by the executor.^[4]

The representative of a testate estate who is someone other than the executor named in the will is an administrator with the will annexed, or administrator c.t.a. (from the Latin cum testamento annexo.) The generic term for executors or administrators is personal representative.

Steps of probate

Some of the decedent's property may never enter probate because it passes to another person contractually, such as the death proceeds of an insurance policy insuring the decedent or bank account that names a beneficiary or is owned as "payable on death", and property (usually, again, a bank account) legally held as "jointly owned with right of survivorship".

Property held in a living trust also avoids probate. In these cases, the personal representative provides documentation to the court, and the property is prevented from entering probate.

After opening the probate case with the court, the personal representative inventories and collects the decedent's property. Next, he pays any debts and taxes. Finally, he distributes the remaining property to the beneficiaries, either as instructed in the will, or under the intestacy laws of the state.

A party may challenge the probate, either by petitioning the personal representative or the court. If the claim is rejected, the claimant may file a lawsuit to prove the claim. Such challenge may force the court to scrutinize the probate in further detail.

The personal representative must understand and abide by the fiduciary duties, such as a duty to keep money in interest bearing account and to treat all beneficiaries equally. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.

Avoiding probate

Probate generally lasts several months, occasionally over a year before all the property is distributed, and incur substantial court and attorney costs. One of the many ways to avoid probate is to execute a living trust. A settlor, or a creator of a trust, transfers ownership of his real property from himself to a trust which he controls and can revise (except in the case of an irrevocable trust.) Upon death, the persons named as beneficiaries in the trust acquire ownership of the property of the trust. Since a probate is a public process, a living trust shields private affairs of the deceased and the heirs from public scrutiny and helps the estate avoid estate tax.

Probate can also be avoided by setting up P.O.D (paid on death) designations on bank accounts and T.O.D (transfer on death) on brokerage accounts, 401ks and IRAs that pass automatically to designated beneficiaries.

As for real estate, a testator must add a named beneficiary to a deed by executing a life estate deed. The property can be passed several generations.

The key to avoiding probate is having named beneficiaries on all assets, as is the case for life insurance. A common error on life insurance is naming the insureds estate as the contingent beneficiary. Doing so will place the proceeds from that policy into probate.

Life insurance, savings accounts, and joint tenancies with the right of survivorship are testamentary substitutes to avoid probate.

A Segregated fund is a specific type of investment vehicle that is held inside a life insurance company. While segregated funds are not life insurance policies, and thus do not have a death benefit, they can be valuable substitutes for mutual funds held at a bank or other financial institution, due to the ability within them to designate a beneficiary, and thus bypass the estate, and probate.

Avoiding probate does not eliminate estate taxes. Under the federal estate tax law as modified, included in the definition of a taxable estate are property held in a living trust, life insurance, payable on death or transfer on death financial instruments, and other property a party receives upon decease of the decedent.

Inter vivos trusts can reduce estate taxes if they are properly structured, but that is not related to the avoidance of probate. Generally, to avoid an estate tax, a person must give it away irrevocably or leave it to a qualified charity. However, the use of credit shelter trusts (AB trusts) can allow a married couple to preserve both unified credits, allowing up to twice the total estate to pass to heirs without estate tax. It may reduce or eliminate the tax.

England and Wales

When someone dies, the term "Probate" usually refers to the legal process whereby the deceased's assets are collected together and, following various legal and fiscal steps and processes, eventually distributed to the beneficiaries of the estate. Technically the term "Probate" has a particular legal meaning but it is generally used within the English legal profession as a term to cover all procedures concerned with the administration of a deceased person's estate. As a legal discipline the subject is vast and it is only possible in an article such as this to cover the most common situations, but even that only scratches the surface.

All legal procedures concerned with Probate (as defined above) come within the jurisdiction of the Family Division of the High Court of Justice by virtue of Section 25 of the Senior Courts Act 1981. The High Court is therefore the only body that is able to issue the documents which give persons the ability to actually deal with a deceased person's estate, such as to enable them to close bank accounts or sell property or shares. It is the production and issuing of these documents, known collectively as "Grants of Representation" that is the primary function of the Probate Registries, which are part of the High Court, and are to whom the general public and probate professionals alike apply to for the Grants of Representation. To find your local Probate Registry see [1]

There are many different types of Grants of Representation, each one designed to cover a particular circumstance. The most common ones are those which cover the two most common situations - either the deceased died leaving a valid Will or they did not. If someone left a valid Will then it is more than likely that the Grant will be a "Grant of Probate". If there was no Will then the Grant required is likely to be a "Grant of Administration". There are many other Grants which can be required in certain circumstances and many have strange latin names but the general public is most likely to encounter these two - the Grant of Probate and the Grant of Administration.

The general public can apply to a local probate registry for a Grant themselves but most people use a probate practitioner such as a solicitor. If an estate is small some banks and building societies will allow accounts to be closed by the deceased's immediate family withpout a Grant, but there usually needs to be less than about £15,000 in the account for them to allow this.

The persons who are actually given the job of dealing with the deceased's assets are called "personal representatives" or "PR's". If the deceased left a valid Will then the PR's will be the "Executors" who are appointed by the Will - "I appoint X and Y to be my Executors etc." If there is no Will or if the Will does not contain a valid appointment of Executors (for example if they are all dead) then the PR's are called "Administrators". So, Executors abtain a Grant of Probate which ebnables them to deal with the estate and Administrators obtain a Grant of Administration which enables them to do the same. Apart from that distinction the function of Executors and Administrators is exactly the same.

For an explanation of the intestacy probate process in England and Wales, see Administration of an estate on death.

References

1. ^ ^{a b} Harper, Douglas. "probate". Online Etymology Dictionary. http://www.etymonline.com/index.php?term=probate. Retrieved 2007-01-05. 
2. ^ Harper, Douglas. "prove". Online Etymology Dictionary. http://www.etymonline.com/index.php?term=prove. Retrieved 2007-01-05. 
3. ^ Probate faq
4. ^ Warren County, New Jersey Surrogate's office

External links

• The Quinnipiac Probate Law Journal - the official scholarly publication of the National College of Probate Judges
• The Connecticut Probate Court Website - providing good state-specific information as well as a link to a widely applicable overview of most Probate Courts' jurisdiction
• List of UK Regional Probate Registries - Regional Offices for probate information and to register the location of a Will and/or Executor

This entry is from Wikipedia, the leading user-contributed encyclopedia. It may not have been reviewed by professional editors (see full disclaimer)

Dansk (Danish)
n. - stadfæstelse af testamente
v. tr. - opnå stadfæstelse af

Nederlands (Dutch)
geldigheid(s bepaling) van testament

Français (French)
n. - lettres d'homologation, copie homologuée d'un testament, (Jur) homologation
v. tr. - (US) homologuer (testament)

Deutsch (German)
n. - gerichtliche Testamentsbestätigung, beglaubigte Testamentsabschrift
v. - bestätigen

Ελληνική (Greek)
n. - (νομ.) επικύρωση διαθήκης, επικυρωμένο αντίγραφο διαθήκης
v. - επικυρώνω (διαθήκη)

Italiano (Italian)
omologazione, autenticare, omologare

Português (Portuguese)
n. - homologação de testamento (f), cópia autenticada (f)
v. - homologar, autenticar um testamento

Русский (Russian)
утверждение завещания, заверенная копия завещания, заверять завещание

Español (Spanish)
n. - legalización de un testamento, prueba, justificación, copia auténtica de un testamento
v. tr. - legalizar un testamento

Svenska (Swedish)
n. - bestyrkande (jur.), (testaments)bevakning (jur.)
v. - styrka

中文（简体）(Chinese (Simplified))
遗嘱查验, 遗嘱查讫证, 检验遗嘱, 加以监护

中文（繁體）(Chinese (Traditional))
n. - 遺囑查驗, 遺囑查訖證
v. tr. - 檢驗遺囑, 加以監護

한국어 (Korean)
n. - 유언의 검인, 유언검인증
v. tr. - (유언서를) 검인하다

日本語 (Japanese)
v. - 検認する
n. - 遺言の検認, 検認済みの遺言書

العربيه (Arabic)
‏(الاسم) قرار بإثبات صحه الوصيه, نسخه من الوصيه (فعل) يثبت صحه شيء ما‏

עברית (Hebrew)
n. - ‮אישור צוואה‬
v. tr. - ‮אישר צוואה‬

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