Probate

Probate is the legal process of settling the estate of a deceased person, specifically resolving all claims and distributing the decedent's property. It is also a term that is commonly used within the Canadian judiciary system to signify “prove to be worthy.”

Etymology

The etymology of ‘’probate’’ stems from several Latin, old English and old French words with somewhat different meanings. According to the Online Etymology Dictionary the first definition dated to 1463 means the "official proving of a will," and originates from the Classic Latin word ’’probatus’’, meaning "a thing proved" , which is the past participle of probāre, “to try, test, prove” or “prove to be worthy”. It also traces its roots to the word ‘’prouwe’’, dated circa 1175, and to the old French word ‘’prover’’, English word prove.

Canada

In 1970 The Supreme Court of Canada was concerned with exclusionary discretion within the judicial system. In R. v. Wray the term “probative value” is used to explain that “judges in criminal cases do not have a discretion to exclude evidence because of how it was obtained.”

The trial judge's discretion to exclude admissible evidence does not extend beyond his duty to ensure that the minds of the jury will not be prejudiced by evidence of little probative value, but of great prejudicial effect. Exclusion of evidence on the ground that, although its probative value was unquestionable, it was obtained by methods which the judge considers to be unfair, has nothing to do with his duty to secure a fair trial for the accused.”

The sole discretion to exclude evidence is based on the weighing of prejudical value and probative value. Where the material evidence is being considered for exclusion:

...a judge must determine the value of the evidence based on reliability and the strength of the inference it lead to, against the cost presented by such evidence, including things as diverse as the practicalities of its presentation, the fairness to the parties and to witnesses, and the potentially distorting effect the evidence can have on the outcome of the case.”

Every day judges are faced to weigh the probative value versus the prejudicial impact. A part of this is symbolized by a weighing scale and represents justice.

Commonwealth

In England and Wales, Ireland (N. and Éire) and Commonwealth countries, and some U.S. states, probate ("official proving of a will") is obtained by executors of a will while Letters of Administration are granted where there are no executors.

Probate in the United States

In some states, after a person residing in that state has died without a valid will or trust, his or her property immediately becomes the property of the spouse, if any, without the need for probate. (This is the case in states that recognize a married couple's property as community property or as tenancy by the entireties.) However, in cases where the surviving spouse does not automatically succeed to the decedent's property, then it is usually necessary to "probate the estate", whether or not the decedent had a valid will. A court having jurisdiction of the decedent's estate (often called a "probate court") supervises probate, in order to ensure the decedent's property is distributed according to the direction of his will and the laws of the state.

The will usually names an executor, a person tasked with carrying out the instructions laid out in the will. The executor's most common task is the marshalling of the decedent's assets throughout the probate process. If there is no will, or if the will does not name an executor, then the probate or other court having jurisdiction of the decedent's estate can appoint one. Traditionally, the representative of an intestate estate is called an administrator. 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.

The first task of the personal representative after opening the probate case with the court is to inventory and collect the decedent's property.

Next, the personal representative pays any debts and taxes that must be paid.

Finally, the personal representative distributes the remaining property to the decedent's beneficiaries, either as instructed in the will, or per the intestacy laws of the state.

Throughout this process there may be disputes. Anyone may make a claim on the estate, either by petitioning the personal representative or the court. If the claim is rejected, the claimant may file a lawsuit to attempt to prove the claim and collect money. Any dispute generally causes the court to treat the probate more formally, and it may reach the point where the court must approve every transfer of every piece of property. [1]

The personal representative must understand and abide by the fiduciary duties (e.g., duty to keep monies in interest bearing account, duty to treat all beneficiaries equally, etc.) placed on him or her. Disregard of 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 can be distributed, and incur substantial court and attorney costs. One of the many ways to avoid probate is to execute a living trust. This is a separate entity to which a person transfers ownership of his real property (house, etc.,) from himself to a trust which he controls and can revise at any time (except in the case of an irrevocable trust.) Upon death, the persons named as beneficiaries in the trust acquire ownership of it and, therefore, the property the trust owns. As probate is a public process, a living trust has the added advantage of preserving the privacy of the deceased and his heirs as well as avoiding some estate tax.

Life insurance, savings accounts, and joint tenancies with the right of survivorship are some of the other ways people use to avoid probate.

It must be noted that avoiding probate does not necessarily mean estate taxes have also been avoided, as the laws imposing the federal estate tax have been modified to include within the definition of the person's taxable estate, property held in a living trust, life insurance, "payable on death" or "transfer on death" financial instruments, and most other property which is transferred from a dead person to a living person in consequence of the death. 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/inheritance tax, a person must give it away irrevocably or leave it to a qualified charity. However the use of credit shelter trusts (also called 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. This may reduce or eliminate the total tax the couple would have otherwise paid.

Probate under English and Welsh law

When someone dies, issuing the legal document to the executor or other administrator to give them authority to deal with their estate is known as probate. The grant of representation is issued by the Probate Registry. If there is a will but no executor letters of administation are issued instead.

It is not always necessary to obtain a grant of probate; some organisations including many insurance companies, banks and building societies will release funds to the executor of the will without seeing a grant of probate if the amount is small and the situation is not complex.

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

External links

Links to non-commercial sources of probate information and case law:

• 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
• Information on a varied range of Probate Issues
• Frequently Asked Probate Questions (commercial site)