Probate

Probate is 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 will and grants its approval by granting probate to the executor. The probated will becomes a legal document that may be enforced by the executor in the law-courts if necessary. 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 will.

The probate process:

  • Creditors must be notified and legal notices published.
  • Executors/Personal Representatives¬†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 obtained.
  • 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.