What is Probate?

Probate is a legal process that takes place after someone dies. It involves a court-supervised transference of a decedent's estate to any survivors and/or creditors in a legal and orderly fashion. At issue are the assets, real property, and personal property that were owned by the deceased person at the time of his or her death.

The probate process was devised to protect the decedent by seeing that his or her posthumous wishes are carried out to the greatest extent possible. It also protects the decedent's heirs by assuring that all assets are accounted for and equitably distributed. It establishes legal title to the estate's property and assets and pays any debts and taxes owed.

The Probate Process

The probate process generally starts when someone finds a decedent's will and files it with the probate court in the country where the decedent last lived. (However, a person's estate can be probated without a will, and all states have "intestate" statutes that specify how such an estate is to be managed.)

Once a will is presented to the court, it acts as a road map, outlining the decedent's wishes. While there are different types of probate depending upon the size and complexity of a decedent's estate, the probate process normally includes:

Proving that the deceased person's will is valid
Determining who will be appointed as executor of the estate
Identifying, gathering, inventorying and appraising the deceased person's property and determining which assets must go through probate
Identifying and notifying any beneficiaries (persons who are given property in a will) or heirs (persons entitled to property if the decedent died without a will) likely to inherit the decedent's property
Alerting any creditors or claimants through a public notice about the decedent's estate
Adjudicating any claims made by creditors on the decedent's estate and resolving any disputes that may arise
Paying any debts and taxes owed by the decedent and receiving any debts owed to him or her
Distributing the decedent's property as the will directs, or if there is no will, as state law requires

Probate typically involves some paperwork and may also require one or more court appearances by a personal representative of the decedent's estate and/or an attorney. Each state has its own probate statutes and procedures, some of which are more complex than others. In Florida, for example, the assistance of a probate attorney is required by law.

The History of Probate

The word "probate" is derived from the Latin word "probatum," which means "a thing proved." Probate originally meant the judicial process of verifying that a decedent's last will and testament was real and valid. The notion that the genuineness of a will should be determined in a special proceeding was developed during the Middle Ages in England by its ecclesiastical (church) courts, which had attained jurisdiction over the dispensation of personal property upon the death of its owner (all real property was considered owned by the crown).

Over the succeeding centuries, British law evolved and the adjudication of wills, as well as the disbursement of both personal and real property upon the death of the owner, was finally transferred from the religious to the secular courts under the Court of Probate Act of 1857.

Much of English common law was transferred to the American colonies (which never had ecclesiastical courts) and the first United States probate court was established in Massachusetts in 1784. Over time, other state legislatures created their own systems for reassigning property, such as homesteaded land, from a deceased person to a living person, in a fair and orderly way. The probate process was also expanded to protect family members who might have a claim on a decedent's property by giving them an opportunity to be heard in a probate court.

In 1969, the National Conference of Commissioners on Uniform State Laws and the House of Delegates of the American Bar Association approved the Uniform Probate Code (UPC), a comprehensive statute whose purpose was to unify, clarify, simplify and modernize probate law and administration throughout all fifty states while reducing the costs involved in the probate process. The UPC has been adopted in its entirety by 17 states, while the remaining 33 states and the District of Columbia, have only implemented parts of the UPC and/or have extensive probate codes of their own.

Why Some People Try to Avoid Probate

The probate process exists in order to make fair and equitable judgments concerning the distribution of a decedent's assets and property, and recently, many states have endeavored to simplify the probate process – decreasing the time and expenses, involved.

However, various objections have been raised by critics of the system. Some of these objections are easy to understand: Probate is a waste of time and money, as well as a violation of one's privacy.

Probate is a Waste of Time

Even in a simple, uncontested case, the probate process can be drawn out with delays that can cause disruptions in the lives of heirs or beneficiaries. People may have to wait for months or years for the distribution of property, or petition the court for the use of money to which they believe they are entitled. And until the process is completed, banks and other financial institutions will usually refuse to release a decedent's assets.

Also, it can sometimes take time to try and locate long-lost heirs, especially if there are no surviving spouses or children. And if there is real property in a state other than the one in which the proceedings are taking place, it may be necessary to repeat the process over again in an ancillary probate proceeding.

Probate is a Waste of Money

While amounts can vary from state to state, it is estimated that costs for attorneys, the probate court and other fees and expenses can equal or exceed five percent of the value of the property left behind at death. And if the estate is complicated or disputed, those costs can be much higher.

In addition, attorney's fees, which often equal 65-75 percent of total probate expenses, are sometimes calculated on the gross value of the decedent's estate, before debts, taxes and other claims are deducted.

Probate Violates a Family's Privacy

Probate court records are open to the public and can be accessed by anyone. This can violate a family's privacy, especially if there are internecine battles over an estate. It can also lead to potential abuse by charlatans or con artists who may make bogus claims in order to delay the process in an attempt to achieve leverage over an estate's rightful heirs or beneficiaries.