What is Probate?

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 the estate is settled according to the laws of intestacy in the state of residence of the deceased at time of death in the absence of a legal will.

No more, no less. Most people think of it as the entire process.

If the decedent didn’t have a Will (“intestate”), then technically it is only intestate succession. But, for convenience, we’ll call it probate. What follows after that is estate administration.

If there is a Will, then the instructions in the Will are followed. If there is not a Will, the State has written a plan for distributing the property and those instructions are followed. The State’s plan without a Will is called “Intestate Succession”. It is a form of estate administration under the tight supervision and scrutiny of the Court.

Since we cannot sign away our property anymore, the Court has to sign for us. The law has a way to transfer our property and pay off any valid debts we have left behind.

The Court picks a person to oversee the process (“Personal Representative, Executor, Executrix, Administrator, or Administratrix”). This Personal Representative will oversee the management and distribution of the estate assets.

With or without a Will, the decedent’s assets must be identified, inventoried, valued, safe guarded, and finally distributed. The distribution will happen either by the instructions in the Will, or by the State’s laws on distribution if there isn’t a Will.