What is Probate?
ESTATE ADMINISTRATION SPECIFIC TERMINOLOGY #
Probate/ Estate Administration | the legal process to prove the validity of, or authenticate, that the writing purported to be a person’s Last Will, is in-fact, the true and final wishes of that person. The process of authenticating a Last Will and Testament as true and final. The process of legally carrying out, or administering, the final wishes of a person as written in their Last Will and Testament. |
Testate | having made a valid will before one dies; Describes a person who had a Will when they died (ex. she died testate) (related: Testator – the author of a Will) |
Intestate | not having made a will before one dies; A person who did NOT have a Will when they died (ex. He died intestate) |
AGENTS/PEOPLE | |
Fiduciary | A person who manages money or property for someone else and must, by law, manage that person’s money and property for the benefit of that person – and not their own benefit. A person operating as a fiduciary is held to very high ethical and moral standards and can be legally prosecuted for violating those standards. |
Testator | a person who has made, or is the author of, a will (ie. the testator of the will) |
Personal Representative | A person who is appointed and authorized by the court to administer, carry out, or settle, the final wishes or affairs of a person or their estate, as governed by the state’s general statutes. An Executor is a kind of Personal Representative; an Administrator is a kind of Personal Representative Also referred to as “PR” (shortened version) |
Executor *Testate | A Personal Representative who has been chosen, or appointed by, the Testator (author) of a Will to carry out their final wishes. |
Administrator *Intestate | A Personal Representative that is appointed by the court to carry out and settle the affairs of a person’s estate when there is no Will (thus no Executor named) left by the deceased. |
Heir | a person who is legally entitled to collect an inheritance from a decedent’s estate because of their relationship to the deceased, not because the decedent wished them to receive or benefit from receiving it. (see beneficiary) |
Beneficiary | someone who will benefit from a Will, Trust, or life insurance policy, usually by way of intentional written instruction by the author of that document, account, or policy. |
An heir is legally entitled to something due to their relationship to the deceased, whereas a beneficiary is anyone, regardless of their relationship to the deceased, that will benefit from someone’s estate. | |
Probate is a legal process used to validate or prove that someone’s last will is valid, meaning-
Because Probate is a legal process, this means it is overseen by the clerk of court in the county where the deceased person resided at the time they died. The probate court will oversee the entire probate process, from start to finish, to ensure that deceased’s wishes are carried out the way they wanted, and to prevent any mishandling or theft from the estate. |
While the definition of probate indicates that it is the process of proving someone’s will is valid, the process doesn’t stop there. Probate refers to the process of administering someone’s estate – from the initial inventory to account for all the assets in the estate – to the final disposition and distribution of those assets/ belongings to the beneficiaries or heirs that should ultimately receive them.
Probate is a complicated procedure – legally speaking. It’s governed by the statutes in the state where the decedent lived, which is just a fancy name for the laws. As you know, laws are not always easy reading material and deciphering them can be exceedingly difficult.
To make an already complicated process even harder, the pathway a probate can follow varies from estate to estate, and all depends on the unique factors that make up that particular estate, such as whether there was an estate plan or if the decedent died without one (ie. died “intestate”), if the decedent had a lot of assets or just a few, if they had an estate plan, was the plan kept up to date or is it outdated and reflects old information…to unexpected family discord and arguments about ‘who is supposed to get what’ or perform certain duties arise. Regardless of the circumstances, the general statutes we just mentioned will rule the process – and will follow a unique path based on the circumstances of each estate.
