c
 is the legal process of administering the estate of a deceased person by resolving all claims and

distributing the deceased person'sproperty 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.

[edit]Probate and Trust Administration "The Legal"

Probate is a process by which property of a decedent is retitled. 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.

[edit]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
[1]
the Classical Latin word probatus, meaning "proven" or "a thing proven." This is thepast
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
[2]
the Welsh word "profi" (to test). The term "probative," used in the law ofevidence, comes from the same
Latin root but has a different English usage.

[edit]Commonwealth

In England and Wales, Northern Ireland, Commonwealth countries (common

law jurisdictions), Ireland and in the U.S., probate ("official proving of a will") is obtained by executors of a
[3]
will while Letters of Administration are granted where there are no executors.

[edit]U.S.
See also: Uniform Probate Code

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

If the estate is not automatically devised to the surviving spouse in this manner or through a joint tenancy,
and is not held within a trust, 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
administer 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. There are exceptions for smaller estates.

If the decedent died without a will, known as intestacy, the estate will be distributed according to the laws
[4]
of the state where the decedent resided or held by the court. If the decedent died with a will, 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. If the decedent died with a will, but only a copy of the will
can be located, many states will allow the copy to be probated, subject to the rebuttable presumption that
the testator destroyed the will before death[5]

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
[6]
estate to protect against possible abuse by the executor.

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.

[edit]


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 or
retirement account that names a beneficiary or is owned as "payable on death", and property (sometimes
a bank or brokerage account) legally held as "jointly owned with right of survivorship".

Property held in a revocable or irrevocable trust created during the grantor's lifetime also avoids probate.
In these cases in the U.S. no court action is involved and the property is distributed privately, subject to
estate taxes.
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, including estate tax in the United States, if the
estate is taxable at the federal or state level, or the Pennsylvania inheritance tax. 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 any aspect of the probate administration, such as a direct challenge to the validity
[7]
of the will, known as a will contest, a challenge to the status of the person serving as personal
representative, a challenge as to the identity of the heirs, and a challenge to whether the personal
representative is properly administering the estate. Issues ofpaternity can be disputed among the
potential heirs in intestate estates, especially with the advent of inexpensive DNA profiling techniques. In
some situations, however, even biological heirs can be denied their inheritance rights, while non-
[8]
biological heirs can be granted inheritance rights.

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.

[edit]i


 

Probate generally lasts several months, and often 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.

Œnter 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.

[edit]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.