Probate

Probate

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 (person's) will and grants its approval, also known as granting probate, to the executor. The probated will then becomes 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.

Probate Administration

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.
• Homestead property, which follows its own set of unique rules in states like Florida, must be dealt with separately from other assets. 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.
• The rights of beneficiaries must be respected, in terms of providing proper and adequate notice, making timely distribution of estate assets, and otherwise administering the estate properly and efficiently.