Probate
Sections Contest Property disposition Common types Other types Governing doctrines In common law jurisdictions, probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased; or whereby, in the absence of a legal will, the estate is settled according to the laws of intestacy that apply in the jurisdiction where the deceased resided at the time of their death.
[1] An executor is a person appointed by a will to act on behalf of the estate of the will-maker (the "testator") upon his or her death.
After the testator dies, the person named in the will as executor can decline or renounce the position, and if so should quickly notify the probate court accordingly.
This may include continuing or filing lawsuits that the deceased was entitled to bring, making claims for wrongful death, paying off creditors, or selling or disposing of assets not particularly gifted in the will, among others.
Sometimes, in England and Wales, a professional executor is named in the will – not a family member but (for example) a solicitor, bank or other financial institution.
This often happens when parents or grandparents are first in line to become the administrator but renounce their rights on the grounds that they are elderly, do not possess knowledge of estate law, or feel that someone else is better suited to the task.
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 huiusmodi 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...")[5] The earliest usage of the English word was in 1463, defined as "the official proving of a will".
Probate lawyers may also represent heirs, creditors and other parties who have a legal interest in the outcome of the estate.
For some transactions, an executor may be required to produce a copy of the probate as proof of authority to deal with property still in the name of the deceased person, as is invariably the case with the transfer or conveyance of land.
The process generally involves the following steps:[23] The main source of English law is the Wills Act 1837.
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.
[25] 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.
An applicant may challenge the validity of a person's will after they have died by lodging a caveat and requisite fee at the probate registry.
This prevents anyone from obtaining a grant of probate for that person's estate for six months, which the applicant can shortly before that point apply to extend.
[30] To challenge the caveat, the intended executor sends a completed "warning" form to the probate registry.
This is a court order authorising them to "uplift, receive, administer and dispose of the estate and to act in the office of executor".
[33] Some states have procedures that allow for the transfer of assets from small estates through affidavit or through a simplified probate process.
The dollar limit by which the small estate procedure can be effectuated was $150,000[34] before a statutory increase was implemented on a three-year schedule,[35] arriving at $184,500 by April 2022.
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.
[39] After opening the probate case with the court, the personal representative inventories and collects the decedent's property.
Finally, he distributes the remaining property to the beneficiaries, either as instructed in the will, or under the intestacy laws of the state.
Issues of paternity can be disputed among the potential heirs in intestate estates, especially with the advent of inexpensive DNA profiling techniques.
