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From Wikipedia, the free encyclopedia

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 and Trust Administration "The Legal"

As with any legal proceeding, there are technical aspects to probate and trust administration: Creditors need to be notified and legal notices published. Trustees need to be guided in how and when to distribute assets and how to take creditors rights into account. A Petition to appoint a personal representative may need to be filed and Letters of Administration obtained. Homestead property, which follows its own set of unique rules in states like Florida, must be dealt with separately from other assets. There are time factors involved in filing and objecting to claims against the estate. There may be a lawsuit pending over the decedent's death or there may have been pending suits that are now continuing. Real estate may need to be sold to effectuate correct distribution of assets pursuant to the estate plan or merely to pay debts. Estate taxes must be considered if the estate exceeds certain thresholds. Other assets may simply need to be transferred from the decedent to his or her heirs. At every step, expert knowledge and advice will help the process go smoother with as little extra stress as possible.


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.


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]


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 marshals 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 incurs 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 in life insurance is naming the insured's 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 without 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 obtain a Grant of Probate which enables 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.


External links

1911 encyclopedia

Up to date as of January 14, 2010

From LoveToKnow 1911

PROBATE, in English law, the "proving" (Lat. probatio) of a will. The early jurisdiction of the English ecclesiastical courts over the probate of wills of personality is discussed under Will. The Court of Probate Act 1857 transferred the jurisdiction both voluntary and contentious of all ecclesiastical,. royal peculiar, peculiar and manorial courts to the court of probate thereby constituted, created a judge and registrars of that court, abolished the old exclusive rights in testamentary matters of the advocates of Doctors' Commons, and laid down rules of procedure. Contentious jurisdiction was given to county courts when the personal estate of the deceased was under £200, in value. The Judicature Act 1873 merged the old court of probate in the probate divorce and admiralty division of the High Court of Justice. The division now consists of the president and one other judge. The practice of the division is mainly regulated by the rules of the Supreme Court 1883. Appeals lie to the court of appeal and thence to the House of Lords. Probate may be taken out either in common or solemn form. In the former case, which is adopted when there is no dispute as to the validity of the will, the court simply recognizes the will propounded as the last will of the deceased. This formality is necessary to enable the executor to administer the estate of his testator. Probate in this form is granted simply as a ministerial act if the attestation clause declares that the formalities of the Wills Act have been complied with, or if other evidence to that effect is produced. Such grant is liable to revocation, but it is provided that any person dealing with an executor on the faith of a grant of probate in common form, shall not be prejudiced by its revocation. The executor may within thirty years be called upon to prove in solemn form, or a person who doubts the validity of the will propounded may enter a caveat which prevents the executor proving for six months and the caveat may be renewed each six months. The executor may however take out a summons to get the caveat "subducted" or withdrawn, but if an appearance to the summons is entered 9 These initials do not apply to certain passages in the above article, namely, the greater part of paragraphs 41, 52, 62 and 72, and almost the whole of the 4th section of Part. I. (pars. 76-93), which have been adopted from the article "Probability" in the 9th edition of the Ency..Brit., written by Professor Morgan Crofton.

within six days to the summons the executor is then compelled to prove in solemn form. Probate in solemn form is a judgment of the court in favour of the will propounded, and is only revocable by the discovery of a later will. In order, therefore, to obtain such grant proceedings have to be taken by action, and witnesses produced in support of the will, and the action proceeds in the usual way.

The principal rules now obtaining as to probate are these. Probate, which since the Land Transfer Act 1897 must be taken out for wills of realty as well as wills of personalty, may be granted either in the principal or in a district registry, and should be obtained within six months after the testator's death. When no executor is named the will is not now invalid, as was once the case, but administration cum testamento annexo is granted. The same course is pursued where the executor renounces or dies intestate before administering the estate of the deceased. After probate, the probate itself (as the official copy of the will is called) becomes evidence, the original will being deposited in the principal registry at Somerset House, London. On grant of probate, estate duty, denoted by a stamp on the affidavit sworn for that purpose, is payable. It varies according to the amount at which the estate of the deceased is fixed by the oath of the executor (see Estate Duty). The act of 1881 enables any officer of inland revenue to grant probate where the personal estate does not exceed £300.


In 1867 an act on lines similar to the English act was passed for Ireland and under the Irish Judicature Act of 1877 the then existing court of probate was merged in the High Court of Justice.


Confirmation includes both the probate and letters of administration of English procedure. Without confirmation by the court interference by the executor becomes a vitious intromission. Originally confirmation of testaments of movables fell, as in England, under the cognizance of the church courts. Such jurisdiction certainly existed at the time of regiam majestatem. This ecclesiastical right continued through the commissary court at Edinburgh (constituted by Queen Mary in 1563), and the local commissaries, until modern times when the jurisdiction of the courts was at first transferred and then abolished by a series of enactments from the Commissary Courts Act 1823 to the Sheriff Courts Act 1876. The act of 1823 placed the commissary jurisdiction in the sheriff courts; by the act of 1876 the sheriffs sit as sheriffs in testamentary matters, no longer as commissaries. Confirmation of wills where the whole estate is under £300 is regulated by the Customs and Inland Revenue Act 1881 and other acts. An eik is an addition to a confirmation made on discovery of additional effects of the deceased after confirmation.

United States. - Probate is granted in some states by the ordinary chancery or common law courts, but more frequently by courts of special jurisdiction, such as the prerogative court in New Jersey, the surrogates' court in New York, the orphans' court in Pennsylvania.

"In a great majority of the states the original equitable jurisdiction over administrations is in all ordinary cases - without any special circumstances such as fraud, or without any other equitable feature such as trust - either expressly or practically abrogated. The courts of equity, in the absence of such special circumstances or distinctively equitable features, either do not possess or will not exercise the jurisdiction, but leave the whole matter of administrations to the special probate tribunals".. so that "unless the case involves some special feature or exceptional circumstances of themselves warranting the interference of equity, such as fraud, waste, and the like, or unless it is of such an essential nature that a probate court is incompetent to give adequate relief, or is one of which the probate court having taken cognizance has completely miscarried and failed to do justice by its decree, the courts of equity will refuse to interpose and to exercise whatever dormant powers they may possess, but will leave the subject matter and the parties to the statutory forum which the legislature plainly regarded as sufficient and intended to be practically exclusive" (Rice's Probate Law, pp. 4 and 5).

Probate courts are in most if not all the states courts of record, having a public seal and a clerk (or the judge has authority to act as clerk): they issue process and execute their decrees by appropriate officers in the same manner as the common law and chancery courts. They sit at stated terms. They have power to punish for contempt, and to compel obedience to their orders and decrees, and their judgments upon matters within their jurisdiction are enforced usually by the same means as common law and chancery courts (Noemen's Law of Administration, § 145).

Jurisdiction as to wills and their probate as such is neither included in nor excepted out of the grant of judicial power to the courts of the United States (i.e. the Federal as distinguished from the state courts). So far as it is ex parte and merely administrative it is not conferred, and it cannot be exercised by them at all until in a case at law or in equity,its exercise becomes necessary to settle a controversy by reason of the (diverse) citizenship of the parties. An action to set aside the probate of a will of real estate may be maintained in a Federal court when the parties on one side are citizens of a different state from the parties on the other side (Ellis v. Davis, 109 U.S. Reports, 485). Probate in solemn form, i.e. after due notice to all parties in interest is the almost universal form in use in the United States. One reason for this no doubt is that all documents affecting title to real estate must be recorded and probate in solemn form concludes all parties to the proceeding and thus tends to establish the title to all real estate passing under the will.

In the United States wills of real property must be separately proven in the proper probate court in each state in which the real property is situated, unless statute dispenses with separate probate (each state being "foreign" to every other for this purpose). Copies of such will and probate should be filed also in the office of the register of deeds of each county in the state in which any real property belonging to the testator is situated.

In the state of New Jersey it has been held that an unprobated will is capable of conveying an interest in the property devised, and when a conveyance is made under a power in the will before probate a subsequent probate validates the conveyance (1906, Mackey v. Mackey, 63 Atl. Rep. 984).

In Illinois a court of equity has no inherent power to entertain a bill to contest a will (1906; O'Brien v. Bonfield, 220 Ill. Rep. 219). In Missouri a foreign (New York) will of real estate in Missouri, probate of which was duly recorded in Missouri, cannot be collaterally attacked, and cannot be set aside by direct proceeding after being filed for record more than five years in Missouri (1907; Cohen v. Herbert, 104 So. W. Rep. 84).

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