Probate

Probate

What is Probate ?

  • Probate is the court-authorized and supervised administration of a decedent’s estate.
  • If the decedent died with a will, it should be filed with the appropriate court.
  • The court will appoint an executor and issue letters testamentary, which establish the authority of the executor to work with the probate assets.
  • If there is no will but the decedent had assets that require probate, a petition can be filed by an interested person (i.e., a creditor or potential heir) requesting that the court appoint an administrator and provide letters of administration. The administrator will be responsible for all tasks of probate.

Administration of Probate

  • Proving the will if the decedent dies testate
  • Petitioning the court to open a probate matter if the decedent dies intestate
  • Appointing the personal representative (or administrator)
  • Marshalling the decedent’s assets
  • Determining and paying the decedent’s debts and taxes
  • Identifying beneficiaries (testate) or rightful heirs (intestate)
  • Transferring title of estate property to the testate beneficiaries or intestate heirs at law

Problems with Probate

  • Attorney fees and court costs (hourly vs. percentage)
  • Lack of privacy—all proceedings are public
  • Built-in delays—assets cannot be dealt with until estate is administered unless court permission is obtained (may involve bond or deposit into court registry)
  • Judge may have limited understanding of trust and estate concepts, especially with complex plans
  • Unnecessary restraint on fiduciary powers

Benefits of Probate

  • Court-supervised—may help if decedent does not trust anyone to handle affairs without court supervision
  • Resolution of creditor claims—provides a mechanism to bring finality to any unresolved creditor claims
  • May make wrongful death or survival of pending lawsuits easier

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