Trusts and Estates


When a person dies, two important matters are payment of the decedent's outstanding debts and transfer of his property to those entitled to it. Probate is the court proceeding for settling someone's final affairs.

Probate Required in Most Cases

Probate proceedings are strictly a matter of state law. The legal rules and procedures vary a lot from state to state. Except where the state has simplified rules for small or uncomplicated cases, expert advice is needed.

A typical probate case begins with the filing of the decedent's will in the probate court. This is usually a special division of the local court that handles probate and related matters. In some states, like New York, the probate court may be called surrogate's court. The case must be filed in the county where the decedent resided at the time of death.

Anyone may file the will. Usually this is done by the person appointed by the decedent to carry out his last wishes. This person is called the executor in most states, and is sometimes called the personal representative.

Along with the will the executor also files a request asking the court to admit the will to probate. This pleading may be called a Petition for Probate of Will and Appointment of Executor or some similar name. The clerk of court may have a form that you can use instead of preparing the document from scratch.

Usually the court will approve the will as filed. It will then issue an order admitting the will to probate. The court clerk then records the will. Usually the executor must publish notice of the probate proceeding in the local newspaper. The point of publication is to advise any person who might have an interest in the decedent's affairs to make this known. It also puts creditors on notice to file claims for payment.

The probate estate means any of the decedent's property that must be transferred according to the will. This does not include property that transfers automatically on death. An example of this is a joint bank account, or a retirement account that already has a designated beneficiary. This property is called the non-probate estate.

Objections and Contested Cases

Most probate cases proceed smoothly from a legal standpoint, despite the distress of loved ones and possibly the disappointment of someone named - or not named - in the will. Occasionally though, a person may object to the proceeding.

Usually this involves a claim that the will offered for probate is invalid. Common reasons for invalidity include forgery or the testator wasn't of sound mind when he made the will. It could also be that someone exerted undue influence on the testator. Most often though, the claim is the decedent executed a later will and revoked the one being offered. The court will try the case and decide on the correct will if there's evidence to support the dispute.

Sometimes the objection is aimed at the executor. The probate court could reject the executor you appoint in your will. For example, the nominee could be mentally incompetent to manage the case. Executors can also be removed after appointment for several reasons.

No Will? No Problem

The probate court also handles the affairs of persons who die without a will. This is called intestacy. The court will appoint an administrator to handle the case. Usually the court will appoint the surviving spouse or an adult child for the job. The process then is quite similar to that for a will, with the administrator collecting the decedent's property, paying his debts and distributing what's left. The big difference is that the property is distributed according to fixed legal rules. This may or may not have been what the decedent would have done had he given it some thought.

The Executor's Duties and Powers

When the court admits the will to probate it will also officially appoint the executor. This order confirms the executor's legal authority to manage the affairs of the probate estate. The court also issues Letters of Administration or Letters Testamentary. These documents show the executor's power to manage the estate and complete tasks related to estate property, such as closing bank accounts or selling real estate.

The executor or administrator in an intestate case:

  • Collects, inventories and appraises all of the property in the probate estate
  • Pays funeral expenses
  • Pays the decedent's taxes and debts
  • Pays the costs associated with the case, like legal fees
  • Officially distributes the property of the probate estate as directed by the will, or according to the fixed rules of intestate succession

The probate court also addresses situations where the law overrides a will's terms on property distribution. This may change the executor's directions. The law can give special treatment to a decedent's surviving spouse and/or minor children. An allowance is provided to them ahead of other beneficiaries or heirs. Furthermore, the law provides for a spousal or elective share. This prevents a decedent from partially or totally disinheriting his spouse and dependent children.

Simple Rules for Smaller Cases

If the decedent's estate is small or uncomplicated several states have simpler procedures for disposing of the property. In some cases this can be done without court supervision, unless an objection is made. You may be able to determine for yourself if your case qualifies for such treatment. A probate lawyer also will be able to advise you if you qualify and assist you in such a case for a nominal fee.

Even if the case is small or simple, probate comes at a stressful time for survivors. The failure to pay the decedent's debts and lawfully dispose of the decedent's property can have serious consequences. For these reasons most people choose to have an experienced probate lawyer assist in these matters.

Questions for Your Attorney

  • I'm the sole beneficiary under a will. Can I just take the property without filing probate?
  • I have property titled jointly with the decedent. What should I do to get clear title to this?
  • I am the largest beneficiary under a will. Can I also be the executor too?

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