Probate

Probate is a court-supervised legal procedure for finalizing a person's affairs and distributing his or her property after death. If an individual dies having a will, or dies with no will or other estate planning provisions, such as a living trust, their estate must go through probate. A special court, known as a probate- or chancery court, handles cases involving the administration of estates.

The probate process determines whether a will is valid; seeks to discover from the will what the testator (the maker of the will) intended to happen to his property; and carries out that intent by gathering and distributing the assets. For those who die intestate (having no will), the probate court oversees the distribution of their property according to applicable law.

When a will exists, the court's primary goal in supervising the probate procedure is to determine and carry out the testator's wishes. This is usually accomplished by reviewing the documents filed with the court, which indicate that the legally required steps have been taken and the deceased person’s property has been distributed according to the instructions of the will. Formal hearings or other court proceedings are generally only required when a problem arises, such as if the will is ambiguous or questionable, or a lawsuit is filed contesting the will.

The cost of probating an estate varies according to the size and complexity of the estate, the efficiency of the planning, the state of residence of the deceased, and the estate’s location. Generally, a smaller and simpler estate costs less to probate than a larger one. Larger estates can, however, minimize costs by using legal devices such as trusts and joint tenancy to remove from the estate all or most of the property that would otherwise have to go through probate. Costs associated with the administration of the probate process are always paid out of the assets of the estate.

Probate law attempts to protect an individual’s right to determine who will be given his or her assets at the time of death, as well as the surviving spouse’s and children’s rights to receive such property. It also governs how a person's property will pass to others at the time of his or her death. Property generally passes in three ways: by will; through alternatives to a will, such as trusts; or by intestacy. An individual's personal property passes according to the law of his or her place of residence at the time of death. Real estate passes according to the law of the state where the property is located.

All state laws allow for a simplified probate procedure for certain estates, which is known as informal probate. This procedure is usually limited to estates that have a total value which is less than a certain amount. Additionally, some states, by using an affidavit procedure, completely exempt smaller estates from probate. State probate laws may also contain special provisions to ease the hardship on the survivors of the deceased. For example, the law may allow certain assets to be transferred immediately to a surviving spouse, without waiting for the probate process to be completed. Such assets may include the family homestead, basic personal effects, and the decedent’s last paycheck.