Probate

Probate in United States

Plain-English Law

Probate as defined by Nolo’s Encyclopedia of Everyday Law (p. 437-455):

The court process following a person’s death that includes proving the authenticity of the deceased person’s will, appointing someone to handle the deceased person’s affairs, identifying and inventorying the deceased person’s property, paying debts and taxes, identifying heirs, and distributing the deceased person’s property.

Practical Information

Note: Some of this information was last updated in 1982

Originally relating to proof; presently relating to the proof of wills, that is, the process of proving a will. In most jurisdictions, property is deemed to vest in the heir, devisees, or bequeathees at the moment of death. However, it is essential, in order to preserve and protect the property of the estate, to pay the debts of the estate, and to deliver the property to the heirs of the estate, that a personal representative, in the form of an executor (in U.S. law) (when there is a will) or an administrator (in U.S. law) (when there is no will), be appointed.

The probate of estates is peculiar within the jurisdiction of each state and the applicable state statutes should be checked to determine whether a probate is required under all circumstances. In some states, if all interested parties will agree, probate may be avoided by contractual family settlement. Many state laws on probates are identical or at least very similar in that many of the states have adopted the Uniform Probate Act. In some states, small estates may be distributed upon affidavit of heirs. Although there is no set definition for a “small estate,” under modern statutes, a small estate would probably vary from $3,000 to $30,000.

If a probate proceeding is necessary, the attorney for the estate generally prepares and submits to the executor the necessary papers that need to be filed in the probate proceeding. Not all forms and/or actions are necessary in all states, and you should determine what procedure to follow within the jurisdiction of a particular state by checking the applicable state statutes. In most cases, the statutes are found in the library of the law office. In the states that have adopted the Uniform Probate Code, a full text of the Uniform Probate Code is outlined in several reference works.

In some states of United States, the probate proceeding is initiated by the filing of the will itself, together with a copy of it, certified to be a correct and true copy (figure 1 shows entries made in the suit register record in a probate proceeding). A petition for the probate of a will is also filed with the will and the copy. Simultaneously, a transfer tax affidavit is filed (this is not required in most states). The inheritance tax is not based upon the affidavit, but upon a final determination of the value of the estate. A special proceeding must be had to determine the inheritance tax.

Legal notice of the probate proceeding must be served upon all interested parties and an affidavit of service (or each interested party may enter a waiver of service) filed with the court. Sworn depositions of witnesses to the will (or in

some states an affidavit of proof of will) must also be filed. If there are no objections to the admission of the will within the time specified, the will is admitted to probate by a decree of the court.

The person or institution named as executor in the will or the person or institution appointed by the court (in which case they are generally referred to as “administrator”) files the bond (unless waived in the will) and an oath, and then the letters testamentary (in U.S. law) as executor are issued to him or her. If a bonded institution is serving as the executor, generally a bond is not required of it. Letters testamentary are not issued until an acceptance is signed and filed. Also, simultaneous with the issuance of the letters testamentary or shortly thereafter, notice will be delivered for publication in a newspaper having general circulation in the area of residence of the decedent notifying all persons who have claims against the estate to file those claims within the statutory specified time.

Parties to a probate proceeding

Read more about Probate Proceeding Parties

Transfer tax affidavit

A transfer tax affidavit is filed with the petition (read more)

Citation and waiver in probate proceeding

Spouse, distributees and executors will be given notice (read more).

Service of citation by publication and mailing

. If any of the distributees live outside the state, or if there are any heirs or next of kin whose names and places of residence are unknown, service is had upon them by publication and mailing. The procedure is similar to that in a civil action. See service of summons (in U.S. law).

Adults may waive the issuance and source of a citation in the matter of proving the last will and testament of the deceased, but infants may not. Thus before the citations are prepared, waivers are secured.

Preparations for hearing

The hearing

in an uncontested probate proceeding is informal. The lawyer for the petitioners

appears before the Clerk of the Court with the witnesses to the will. The date of the hearing is the return day indicated in the citation. (In some jurisdictions, the Clerk of the Court sets the date for hearing at the time the petition is filed.)

Notice of probate

Legatees and devisees must be given notice that the will has been offered for probate (read more).

Decree admitting will to probate

A decree in a probate proceeding serves the same purpose as an order or judgment in a civil action. A favorable decree admits the will to probate and directs that letters testamentary be issued to the executor nominated in the will. The probate judge signs the decree, but the petitioner’s attorney prepares it. Forms are available.

Letters testamentary

After the judge signs the decree, the Clerk of the Court issues letters testamentary to the executor. In some courts, the attorney for the executor prepares the letters. They are the evidence of the executor’s authority to act. Anyone dealing with the executor as the representative of the estate will require a certificate to the effect that letters have been issued and are still in force. Certificates are available from the Clerk of the Court for a small fee.

Notice to creditors

As soon as letters testamentary are issued, notice to creditors should be published in a local newspaper. Creditors of the decedent are given a certain time in which to file any claims they may have against the decedent. Enter in diary the last day the creditors have to present claims.

Newspapers usually have an appropriate printed form of notice to creditors that can be filled in without any difficulty. Within a specified time after the last publication, affidavit of publication is filed with the Clerk of the Court. The publisher makes the affidavit of publication and delivers it to either the Clerk of the Court or the attorney. Enter in diary the date by which the affidavit must be filed; also make entries in the suit register.

(Revised by Ann De Vries)

What is Probate?

For a meaning of it, read Probate in the Legal Dictionary here. Browse and search more U.S. and intern
ational free legal definitions and legal terms related to Probate
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Basic Meaning of Probate

Probate means: the process where the estate of a decedent is administered.

Most Popular Entries related to Probate

Resources

See Also

  • Legal Topics.
  • Estate and Gift Taxes; Testamentary.

    Further Reading (Articles)

    Probate judge post contested Woodcock, 90, faces Odier-Fink, 40, for Penobscot County, Bangor Daily News (Bangor, ME); October 29, 2010; JUDY HARRISON

    Probate judge race a friendly face-off?, New Haven Register (New Haven, CT); November 1, 2010; Pam McLoughlin

    Probate: What It Is and How to Avoid It, Mondaq Business Briefing; October 16, 2012; Dillon, Denis

    Probate Wills And Trusts, The Sun Reporter; October 14, 2004; Dearman, John

    WHAT PROBATE COURTS DO IN COLORADO.(Local), Rocky Mountain News (Denver, CO); April 7, 2001; Lindsay, Sue

    Avoiding probate: what you should tell clients. National Underwriter Life & Health-Financial Services Edition; September 3, 1990; Leimberg, Stephan R.

    Probate and Executors, Gale Encyclopedia of Everyday Law; January 1, 2006

    CONNECTICUT’S probate courts are the topic of much [Derived Headline], New Haven Register (New Haven, CT); March 1, 2009; Charles Kochakian

    Guide to Probate & Administration in the Bahamas, Mondaq Business Briefing; October 16, 2012

    Overhaul of probate to slash court sites?, New Haven Register (New Haven, CT); June 15, 2009; Rachael King

    State probate courts in the red; $3.2M deficit expected to grow, official says, New Haven Register (New Haven, CT); August 4, 2006; Randall Beach

    Planning to Reduce Probate Fees. Mondaq Business Briefing; January 13, 2011; Hisey, Heather

    Controversy enlivens race for probate judge ; Five Democrats, including the incumbent, want the part-time job. Portland Press Herald (Portland, ME); June 1, 2004; BETH QUIMBY Staff Writer

    Basic Facts About Probate, Sentinel; June 9, 2005

    Solution to Probate Stalemate vs. Historic Properties, Virgin Islands Daily News; April 23, 2013; Report

    Applications For Probate In The BVI For The Estates Of Hong Kong Domiciliaries.(Probates Act 1967 ), Mondaq Business Briefing; April 26, 2011

    I want to probate a will in federal court.(In Practice), Florida Bar News; June 1, 2006; Martin, James W.

    One Property, Many Probates, Sentinel; January 17, 2013; Cooper, Marlene S.

    Panel Admonishes Probate Judge: Council On Judicial Conduct Says Meccariello Compromised Office By Mingling Roles. Hartford Courant (Hartford, CT); February 20, 2007

    A prudential exercise: abstention and the probate exception to federal diversity jurisdiction. Michigan Law Review; October 1, 2005; Grostic, Christian J.

    Probate in State Statute Topics

    Introduction to Probate (State statute topic)

    The purpose of Probate is to provide a broad appreciation of the Probate legal topic. Select from the list of U.S. legal topics for information (other than Probate).

    Basic Meaning of Probate

    Probate means: the process where the estate of a decedent is administered.

    Most Popular Entries related to Probate

    Resources

    Further Reading


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