Definition of probate
From Latin probatus, past participle of probare (“to test, examine, judge of”); see probe, prove.
probate (plural probates)
- (law) The legal process of verifying the legality of a will.
- (law) A copy of a legally recognised and qualified will.
probate (third-person singular simple present probates, present participle probating, simple past and past participle probated)
- (transitive) To establish the legality of (a will).
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A probate court (surrogate court) decides the validity of a testator's will. A probate interprets the instructions of the deceased, decides the executor as the personal representative of the estate, and adjudicates the interests of heirs and other parties who may have claims against the estate.
Probate is a process by which a will of a deceased person is proved to be valid, such that their property can in due course be retitled (US terminology) or transferred to beneficiaries of the will. As with any legal proceeding, there are technical aspects to probate administration:
- Creditors need to be notified and legal notices published.
- Executors of the Will need to 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 obtained.
- 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, jointly owned property will pass 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 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 will be 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 his or her beneficiaries.
England and Wales
When someone dies, the term "Probate" usually refers to the legal process whereby the deceased's assets are collected together and, following various legal and fiscal steps and processes, eventually distributed to the beneficiaries of the estate. Technically the term "Probate" has a particular legal meaning but it is generally used within the English legal profession as a term to cover all procedures concerned with the administration of a deceased person's estate. As a legal discipline the subject is vast and it is only possible in an article such as this to cover the most common situations, but even that only scratches the surface.
All legal procedures concerned with Probate (as defined above) come within the jurisdiction of the Family Division of the High Court of Justice by virtue of Section 25 of the Senior Courts Act 1981. The High Court is therefore the only body that is able to issue the documents which give persons the ability to actually deal with a deceased person's estate, such as to enable them to close bank accounts or sell property or shares. It is the production and issuing of these documents, known collectively as "Grants of Representation" that is the primary function of the Probate Registries, which are part of the High Court, to which the general public and probate professionals alike apply to for the Grants of Representation.
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