Probate

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Not to be confused with Probation.

Probate is a legal document. Receipt of probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person's property under a will. A probate court (surrogate court) decides the legal validity of a testator's will and grants its approval by granting probate to the executor. The probated will become a legal instrument that may be enforced by the executor in the law-courts if necessary. A probate also officially appoints the executor (or personal representative), generally named in the will, as having legal power to dispose of the testator's assets in the manner specified in the testator's will. However, through the probate process a will may be contested.[1][2]

Etymology[edit]

The English noun "probate" derives directly from the Latin verb probare,[3] to try, test, prove, examine,[4] more specifically from the verb's past participle nominative neuter probatum,[5] "having been proved". Historically during many centuries a paragraph in Latin of standard format was written by scribes of the particular probate court below the transcription of the will, commencing with the words (for example): Probatum Londini fuit huismodi testamentum coram venerabili viro (name of approver) legum doctore curiae prerogativae Cantuariensis... ("A testament of such a kind was proved at London in the presence of the venerable man ..... doctor of law at the Prerogative Court of Canterbury...")[6] The earliest usage of the English word was in 1463, defined as "the official proving of a will".[7] The term "probative," used in the law of evidence, comes from the same Latin root but has a different English usage.

Probate clause[edit]

A representative example of a complete probate clause, from the 14th century (or earlier) onwards, added at the bottom of the office transcribed copy of a will is as follows, taken from the will of Anthony Bathurst, 1697, PROB 11/438:[8]

PROBATUM fuit huiusmodi testamentum apud Londinium coram [9] venerabili et egregio viro domino Richardo Raines, milite, legum doctore curiae praerogativae [10] Cantuariensis magistro custodis sive commissarii legitime constituti vicesimo tertio die mensis Junii Anno Domini Millesimo Sexcenti Nonaginta Septimo juramento [11] Mariae Bathurst relictae et executricis in dicto testamento nominata cui commissa fuit administratio omnium et singulorum bonorum, jurium et creditorum dicti defuncti de bene et fideliter administrando [12] eadem ad sancta Dei Evangelis jurat. Examinatur.

Translated literally as:

This will was proved at London before the worshipful Sir Richard Raines, knight, Doctor of Laws, Master Keeper or Commissary of the Prerogative Court of Canterbury, lawfully constituted, on the twenty third day of the month of June in the year of our Lord one thousand six hundred and ninety seven, by the oath of Mary Bathurst, relict and executrix named in the said will, to whom administration was granted of all and singular the goods, rights and credits of the said deceased, sworn on the holy Gospel of God to well and faithfully administer the same. It has been examined".

Probate administration[edit]

Probate is a process that proves the will of a deceased person is valid, so their property can in due course be retitled (US terminology) or transferred to beneficiaries of the will. As with any legal proceeding, there are technical aspects to probate administration:

  • Creditors must be notified and legal notices published.
  • Executors of the will must 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 (often referred to as "letters testamentary") issued. A Grant of Letters of Administration can be used as proof that the ‘Administrator' is entitled to handle the assets.[13]
  • Homestead property, which follows its own set of unique rules in states like Florida, must be dealt with separately from other assets.[14] In many common law jurisdictions such as Canada, parts of the US, the UK, Australia and India, jointly owned property passes automatically to the surviving joint owner separately from any will, unless the equitable title is held as tenants in common.
  • 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. There may be separate procedures required in contentious probate cases.
  • Real estate or other property may need to be sold to effect correct distribution of assets pursuant to the will or merely to pay debts.
  • Estate taxes, gift taxes or inheritance taxes must be considered if the estate exceeds certain thresholds.
  • Costs of the administration including ordinary taxation such as income tax on interest and property taxation is deducted from assets in the estate before distribution by the executors of the will.
  • Other assets may simply need to be transferred from the deceased to his or her beneficiaries, such as life insurance. Other assets may have pay on death or transfer on death designations, which avoids probate.[15][2]

Commonwealth[edit]

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 will while letters of administration are granted where there are no executors.[16][17][2]

United States[edit]

In any jurisdictions in the U.S. that recognize a married couple's property as tenancy by the entireties, if a person dies intestate (owning property without a will), 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. Distribution of certain estate assets requires selling illiquid assets, including real estate. There are exceptions for smaller estates. For example, California has a “Small Estate Summary Procedure” to allow the summary transfer of a decedent’s asset without a formal Probate proceeding. The dollar limit by which the Small Estate procedure can be effectuated is $100,000.[18] If the decedent died without a will, known as intestacy, the estate is distributed according to the laws of the state where the decedent resided, or as held by the court. If the decedent died with a will, the will usually names an executor (personal representative), who carries 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 allow the copy to be probated, subject to the rebuttable presumption that the testator destroyed the will before death.

In some cases, where the person named as executor cannot administer the probate, or wishes to have someone else do so, another person is named 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.[19]

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[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. 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 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 of paternity 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-biological heirs can be granted inheritance rights.[20]

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.

England and Wales[edit]

When someone dies, the term "probate" [21] 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 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.[17] 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 able to issue documents that confer on someone the ability to deal with a deceased person's estate—close bank accounts or sell property. 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, which the general public and probate professionals alike apply to for grants of representation.[22][17] There are many different types of grants of representation, each one designed to cover a particular circumstance. The most common cover the two most common situations—either the deceased died leaving a valid will or they did not. If someone left a valid will, it is more than likely that the grant is a grant of probate. If there was no will, the grant required is likely to be a grant of administration. There are many other grants that can be required in certain circumstances, and many have technical Latin names, but the general public is most likely to encounter grants of probate or administration. If an estate has a value of less than £5,000.00 or if all assets are held jointly and therefore pass by survivorship, for example to a surviving spouse, a grant is not usually required.[23][17] 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 allow the deceased's immediate family to close accounts without a grant, but there usually must be less than about £15,000 in the account for them to allow this.[17] 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, the PR's are the "executors" 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 that permits them to deal with the estate and administrators obtain a grant of administration that lets them do the same. Apart from that distinction, the function of executors and administrators is exactly the same.[17] A requirement of the Probate process is the valuation of the Estate.[24][17] For an explanation of the intestacy probate process in England and Wales, see Administration of an estate on death.

See also[edit]

References[edit]

  1. ^ Simrin, Steven. "Contesting A Will", Oakland, CA 18 July 2013. Retrieved on 26 November 2013.
  2. ^ a b c Dealing with probate in 2013 The Guardian, 15 February 2013
  3. ^ Collins Dictionary of the English Language
  4. ^ Cassell's Latin Dictionary
  5. ^ Testamentum, the participle refers to, being a neuter noun
  6. ^ Text from will of James Boevey (d.1696)
  7. ^ Harper, Douglas. "probate". Online Etymology Dictionary. Retrieved 5 January 2007. 
  8. ^ Will of Anthony Bathurst, 1697
  9. ^ The name (and its related adjectives) after the preposition coram ("in the presence of") must be stated in the ablative case
  10. ^ curiae praerogativae, locative case
  11. ^ Juramento, ablative of late-Latin noun Juramentum, oath, thus "By the oath of, with the oath of", the name following of the executor is therefore stated in the genitive case
  12. ^ Administrando: ablative of gerund of verb administro
  13. ^ http://www.probatesydney.com.au/Service-10/What-are-Letters-of-Administration
  14. ^ Devise and Descent of Florida Homestead Property
  15. ^ What Assets Are Probate Assets
  16. ^ Probate Information
  17. ^ a b c d e f g Probate: avoid a final rip-off when sorting out your loved one’s estate The Guardian, 21 September 2013
  18. ^ J.R. Matsen
  19. ^ Warren County, New Jersey Surrogate's office
  20. ^ Jello Heir Denied Fortune
  21. ^ Probate Glossary of Law
  22. ^ "About HM Courts & Tribunals Service". Hmcourts-service.gov.uk. 2011-04-01. Retrieved 2014-04-10. 
  23. ^ "Probate Info". 
  24. ^ HM Revenue & Customs

External links[edit]