Probate: Difference between revisions

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{{Wills, trusts, estates}}
{{Wills, trusts, estates}}
The [[etymology]] of "probate" stems from Latin, old French, and old English words with somewhat word ''prouwe'', dated circa 1175, or ''prover'', and is related to the English word "[[wikt:prove|prove]]".<ref>Harper, Douglas, ''Online Etymology Dictionary''. Search "Prove", Published 2001,, Accessed 2007-01-05.</ref> The term "probative," used in the law of [[evidence]], comes from the same Latin root but has a different English usage.
'''Probate''' is the [[legal]] process of administering the [[estate (law)|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.
:''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 the [[Classical Latin]] word ''probatus'', meaning "a thing proved".<ref name="Harper">Harper, Douglas. "Online Etymology Dictionary." Search for "Probate", Published 2001,, Accessed 2007-01-05.</ref> This is the [[past participle]] of ''probāre'', which means "to try, test, prove" or "prove to be worthy".<ref name="Harper"/>
It also traces its roots to the old french word ''prouwe'', dated circa 1175, or ''prover'', and is related to the English word "[[wikt:prove|prove]]".<ref>Harper, Douglas, ''Online Etymology Dictionary''. Search "Prove", Published 2001,, Accessed 2007-01-05.</ref> The term "probative," used in the law of [[evidence]], comes from the same Latin root but has a different English usage.

Revision as of 19:36, 29 May 2009

The etymology of "probate" stems from Latin, old French, and old English words with somewhat word prouwe, dated circa 1175, or prover, and is related to the English word "prove".[1] 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.[2]


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 marshalls 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.[3]

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 incur 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 on life insurance is naming the insureds 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, 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 administration 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.


  1. ^ Harper, Douglas, Online Etymology Dictionary. Search "Prove", Published 2001,, Accessed 2007-01-05.
  2. ^ Probate faq
  3. ^ Warren County, New Jersey Surrogate's office

External links