What is Probate?

Transcript:

I am attorney Jeramie Fortenberry.  In this video, we are going to talk about a question that comes up often in my consultations with clients or with potential clients. That question is: what is probate?

In simple terms, probate is a court-supervised legal process for moving assets from a deceased person to the people or the organizations that are entitled to the assets.  It is a court-supervised process, meaning that the court will be involved in the transfer and will oversee it to be sure that the right people end up with the assets and, in most situations, will make sure that there aren’t any creditors’ claims that will attach to the assets.  So in most cases, creditors’ claims are typically resolved as part of the probate process.

The goal of probate is to give the people or organizations that are entitled to the assets clear title.  This means title that a third party—such as a buyer or a lender—will accept in dealing with the property. This means that, when the probate process is finished, the people who end up with the assets will be able to deal with them as though they were their own. They will be able to, for example, sell the assets or maybe take out a loan against them and pledge the assets for security (as in the case of a mortgage of real estate). So, again, the goal is to be sure (a) that the right people end up with the assets and (b) that those assets are free and clear of any creditor claims so that the people who have the assets can deal with them without any further need for court involvement.

Now, there is some different terminology involved in probate depending on whether or not the deceased person (who is called a “decedent”) left a valid Last Will and Testament. If the deceased person had a valid Last Will and Testament, then he or she is said to have died testate. So “testate” is simply the condition of having died with a valid Last Will and Testament.

If the deceased person did not have a valid Last Will and Testament, then he or she is said to have died intestate. So, again, intestacy would be the condition of having died without a valid Last Will and Testament.

The word “probate” comes from a Latin word that means “to prove.”  The process was originally intended to prove (to establish the validity of) the decedent’s Last Will and Testament.  Well, in situations where there is no Last Will and Testament (i.e., when the person dies intestate), there is nothing to “prove” because there is no Will. In that case, the proceeding is technically called an “estate administration” or an “intestate estate administration.”

This is just a difference in terminology—nothing to really get hung up on.  But sometimes you hear these words used interchangeably.  I will often, for example, refer to an intestate estate administration as a “probate” even though, technically, we are not proving a Will.  It is just different ways of referring to the same thing.  The court processes are the same (or more/less the same, depending on your state).  The procedure for moving a Will through the court system isn’t substantially different from the procedure for moving an intestate estate through the court system.  They both have the same goal of giving clear title to the assets to whoever is entitled to the assets.  But there is some different terminology to be aware of.

There also different terminology that is used to refer to the classes of people that inherit from a deceased person.  If the decedent had a Last Will and Testament (i.e., if the decedent died testate), the people who inherit through the Last Will and Testament (the people who are named in the decedent’s Will) are referred to typically as beneficiaries. That is the term that I use that that most, I think, most attorneys and the judicial system will use to refer to people who inherit through a Last Will and Testament—the people or the organizations named in the Last Will and Testament.

If a person does not have a Last Will and Testament, then there is a system of laws that the legislatures of each state have enacted that will be a default system for distributing that person’s property.  These laws are called the laws of intestacy or the intestate succession laws, and they are basically the legislatures’ best guess as to how that property should go—the way that they think that most people would want their assets to go when they die.  It is just the legislature’s best guess.  Most of the time, it will go first to the spouse or the children and then spread out to more remote family members from there.  In that case, whoever the group of people is that inherits from an intestate estate (from a person who died without a Will)—that group of people are known as the decedent’s “heirs at law” or more commonly referred to as the “heirs.”

So if the decedent had a Last Will and Testament we are typically going to refer to the people that inherit through that Last Will and Testament as “beneficiaries.”  If the decedent did not have a Last Will and Testament, then we will typically refer to the people that inherit through the state’s intestacy laws as “heirs” or “heirs at law.”  In each case, we are just dealing with groups of people who end up with the decedent’s assets after the probate or the estate administration process is finished.