Probate
In common law jurisdictions, 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, in the absence of a legal will, the estate is settled according to the laws of intestacy that apply in the jurisdiction where the deceased resided at the time of their death.
The granting of probate is the first step in 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 decides the legal validity of a testator's will and grants its approval, also known as granting probate, to the executor. The probated will then becomes a legal instrument that may be enforced by the executor in the law courts if necessary. A probate also officially appoints the executor, generally named in the will, as having legal power to dispose of the testator's assets in the manner specified in the testator's will. However, through the probate process, a will may be contested.
Terminology
Executor
An executor is a person appointed by a will to act on behalf of the estate of the will-maker upon their death. An executor is the legal personal representative of a deceased person's estate. The appointment of an executor only becomes effective after the death of the testator. After the testator dies, the person named in the will as executor can decline or renounce the position, and if so should quickly notify the probate court accordingly.Executors "step into the shoes" of the deceased and have similar rights and powers to wind up the personal affairs of the deceased. This may include continuing or filing lawsuits that the deceased was entitled to bring, making claims for wrongful death, paying off creditors, or selling or disposing of assets not particularly gifted in the will, among others. But the role of the executor is to resolve the testator's estate and to distribute the estate to the beneficiaries or those otherwise entitled.
Sometimes, in England and Wales, a professional executor is named in the will – not a family member but a solicitor, bank or other financial institution. Professional executors will charge the estate for carrying out duties related to the administration of the estate; this can leave the family facing additional costs. It is possible to get a professional executor to renounce their role, meaning they will have no part in dealing with the estate; or to reserve their power, which means the remaining executors will carry out the related duties, but without the involvement of the professional executor.
Administrator
When a person dies without a will then the legal personal representative is known as the "administrator".This is commonly the closest relative, although that person can renounce their right to be administrator, in which case the right moves to the next closest relative. This often happens when parents or grandparents are first in line to become the administrator but renounce their rights on the grounds that they are elderly, do not possess knowledge of estate law, or feel that someone else is better suited to the task.
The appointment of an administrator follows a codified list establishing priority appointees. Classes of persons named higher on the list receive priority of appointment to those lower on the list. Although relatives of the deceased frequently receive priority over all others, creditors of the deceased and 'any other citizen ' may act as an administrator if there is some cognizable reason or relationship to the estate. Alternatively, if no other person qualifies or no other person accepts appointment, the court will appoint a representative from the local public administrator's office.
Etymology
The English noun "probate" derives directly from the Latin verb probare, to try, test, prove, examine, more specifically from the verb's past participle nominative neuter probatum, "having been proved". Historically during many centuries a paragraph in Latin of standard format was written by scribes of the particular probate court below the transcription of the will, commencing with the words : Probatum Londini fuit huiusmodi testamentum coram venerabili viro ''legum doctore curiae prerogativae Cantuariensis...'' The earliest usage of the English word was in 1463, defined as "the official proving of a will". The term "probative", used in the law of evidence, comes from the same Latin root but has a different English usage.Probate process
Probate is a process of improvement that proves a will of a deceased person is valid, so their property can in due course be retitled or transferred to beneficiaries of the will. As with any legal proceeding, there are technical aspects to probate administration:- Creditors must be notified and legal notices published.
- Executors 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 issued. A Grant of Letters of Administration can be used as proof that the 'Administrator' is entitled to handle the assets.
- 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, any 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 the 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 are 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 their beneficiaries, such as life insurance. Other assets may have pay on death or transfer on death designations, which avoids probate.
- The rights of beneficiaries must be respected, in terms of providing proper and adequate notice, making timely distribution of estate assets, and otherwise administering the estate properly and efficiently.
A probate lawyer offers services in probate court, and may be retained to open an estate or offer service during the course of probate proceedings on behalf of the administrator or executor of the estate. Probate lawyers may also represent heirs, creditors and other parties who have a legal interest in the outcome of the estate.
In common law jurisdictions, probate is obtained by executors of a will while letters of administration are granted where there are no executors.
Australia
In Australia, probate can refer to the process of proving the will of a deceased person and also to a grant of probate, the legal document that is obtained.There is a Supreme Court probate registry in each jurisdiction that deals with probate applications. However, each state and territory has slightly different laws and processes in relation to probate. The main probate legislation is as follows:
- New South Wales—Probate and Administration Act 1898.
- Victoria—Administration and Probate Act 1958.
- Queensland—Uniform Civil Procedure Rules 1999 and Succession Act 1981.
- Western Australia—Non‑contentious Probate Rules 1967.
- South Australia—Administration and Probate Act 1919.
- Tasmania—Administration and Probate Act 1935.
- Australian Capital Territory—Administration and Probate Act 1929.
- Northern Territory—Administration and Probate Act 1993.
Application for grant of probate
Applications for probate are made to the probate office in the jurisdiction with which the deceased has a close connection, not necessarily where the person died. Normally, only the executor of a will can apply for a grant of probate, and it is their duty to obtain probate in a timely manner. Executors can apply for probate themselves or be represented by a lawyer. With the application for probate, the applicant must also provide the original of the will, an official death certificate, a copy of the death notice and a statement of the known assets and liabilities of the deceased estate. The applicant may also be required to have published a notice in a major newspaper of an intention to make the application for probate.