Glossary of Important Probate Terminology

Probate

When a person dies, their last will and testament (assuming they prepared on in advance) is handled and their wishes for the distribution of their personal property implemented through a process called probate. Probate simply means the procedure by which their last written directives are legally certified as the final statement of their wishes in regard to their worldly possessions (including any property or properties they may have owned).  It also confirms the appointment of a person or entity the deceased person selected to administer their estate.  The term probate is also frequently used to refer to the entire process of “probating” an estate.  In this usage, it refers to the entire process that gathers all of the available assets, pays any outstanding debts, taxes, administrative expenses and then finally makes the specified distribution of remaining assets to those persons or entities designated by the will.

The personal representative (also know as the executor or executrix) who is named in the will is legally in charge of this process and is responsible for handling the orderly method for administration of the estate as set forth by the probate laws and procedures of their state. The executor is typically held accountable for their actions and decisions by the heirs and other beneficiaries and in some cases may be formally supervised by a probate court. If a will does not exist or a personal representative is not designated in the will, the court will appoint one (assuming there is personal property to distribute).

The personal representative is often entitled by law to a reasonable fee or commission for their services.

Probate law generally encourages or provides for partial distributions of funds during the period of administration and assets are often distributed “in kind” rather than sold during this period. Tax laws generally look to the personal representative as being responsible for making death tax filings and other tax payments from the outstanding assets of the deceased.  Therefore, choosing an executor / executrix / personal representative is an important decision.

The basic job of administration and accounting for assets must be done whether the estate is handled by a personal representative as part of the probate process or if probate is avoided. In the recent past, lawyers and other professionals have advocated the use of probate avoidance techniques (such as revocable trusts, etc.) in states where the probate process has been seen to be too slow and overly expensive. In recent years, many states have simplified or streamlined their probate processes and in such states, there is now less reason to employ probate avoidance techniques.

Probate Court

A probate court, which is sometimes referred to as a surrogate court, is a specialized court and legal process that deals with matters pertaining to the probate and the administration of the estate of deceased persons.

These specialized courts ascertain and oversee that proper administration and distribution of the assets of a decedent (one who has died), determine and certify the validity of wills, enforce the provisions of a valid will (by issuing the grant of probate), prevent improper action or malfeasance by executors and administrators of estates, and provide for the equitable distribution of the assets of persons who die intestate (without a valid will). In such cases, the court may appoint a personal representative to administer the matters pertaining to an estate.

If there are disputes regarding an estate, the probate court ultimately decides who is to receive the property of a deceased person. In a case of an intestacy, the court determines who is to receive the deceased’s property under the laws it is governed by. The probate court will oversee the process of distributing the deceased’s assets to the proper beneficiaries. In some states or jurisdictions, probate courts are also referred to as orphans courts, superior court, courts of ordinary or other names. Not all jurisdictions have specific probate courts and in some locales, probate matters are handled by a chancery court or another court of equity.

The probate court can be petitioned by parties that are interested in or who have claims against an estate, such as when a beneficiary feels that an estate is being mishandled or someone to whom the decedent owed money. The court has the authority to demand that an executor, executrix or personal representative give an account of their actions on behalf of an estate.

The Personal Representative

The Personal Representative, also known as the Executor (if the personal representative is a male) or Executrix (if the personal representative is a female) is the person who is designated by the will of person who has died to administer their estate and handle the distribution of its assets to those entities designated by the provisions of the will. Unless there is some valid objection or the person designated refuses to serve in that capacity, the probate judge will appoint the person who is named in the will to serve as the personal representative.

It is the duty of the personal representative to ensure that the deceased person’s wishes, as expressed in the will, are carried out. Some of the tasks that may be required to be performed by the personal representative include determining and protecting the specific assets of the estate; obtaining information (name and location) in regard to all beneficiaries named in the will and any other potential heirs; collecting and arranging for payment of the debts (if any) of the estate; approving or contesting any claims made by creditors; making sure estate taxes are calculated and paid, filing any required forms, and assisting the attorney for the estate (often selected by the personal representative if not specified in the will).

Joint Tenancy With Rights of Survivorship

Joint tenants (or tenancy) with right of survivorship (JTWROS) is a type of ownership of real property or financial assets in which all joint owners have equal portions of ownership that are immediately re-allocated to remaining owners if one or more owner dies.

Testate

This term refers to a person who has died and left a “Last Will and Testament” that specifies their wishes pertaining to the distribution of the assets of their estate following their death. In this case, the estate will be distributed according to the provisions of the will.

Intestate

This term refers to a person who has died and did not leave a “Last Will and Testament”. In this case, the administration of the estate will be handled by the court of jurisdiction and according to the laws of the state.

Codicil

A codicil is a document, attachment or rider that is added to an existing will that modifies or supersedes existing provisions or adds new provisions. This is done as an alternative to redrawing the entire will and is often done to change a beneficiary or assign disposition of a particular property or define the rights of a specific beneficiary.