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When a person dies, their last will and testament (assuming they prepared one 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 regarding 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 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 known 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 is a specialized court that handles matters related to the estates of deceased persons. These courts are responsible for overseeing the distribution of a deceased person’s assets, ensuring that their wishes are carried out, and resolving any disputes that may arise.

Key Points:

Probate courts are responsible for administering the estates of deceased persons.

They oversee the distribution of assets, ensure that wills are valid, and prevent improper actions by executors.

They also resolve disputes regarding estates and determine who is entitled to receive a deceased person’s property.

Additional Information:

Probate courts are sometimes referred to as surrogate courts or orphans’ courts.

Not all jurisdictions have separate probate courts, and probate matters may be handled by other courts.

Probate courts can be petitioned by interested parties, such as beneficiaries or creditors of the estate.

Example:

When John Smith passed away, his will left his entire estate to his wife, Jane. However, John’s son, Tom, contested the will, claiming that it was not valid. The probate court heard the case and ultimately determined that the will was valid. The court then oversaw the distribution of John’s assets to Jane.

Personal representative, also known as an executor or executrix, is an individual appointed by a deceased person’s will to manage their estate and distribute their assets according to the will’s provisions. The probate court typically approves the appointment of the person named in the will, unless there is a valid objection or the designated individual declines to serve.

Key Responsibilities:

Carrying out the deceased’s wishes: 

The personal representative is responsible for ensuring that the deceased’s wishes, as expressed in the will, are fulfilled.

Managing estate assets: 

The personal representative identifies, protects, and manages the deceased’s assets, ensuring their preservation until distribution.

Locating beneficiaries: 

The personal representative tracks down and notifies all beneficiaries named in the will and any potential heirs.

Settling debts and taxes: 

The personal representative pays the deceased’s debts, arranges for payment of estate taxes, and handles any claims made by creditors.

Legal and administrative tasks: 

The personal representative may collaborate with an estate attorney to handle legal matters, filing necessary forms, and overseeing administrative procedures.

Additional Information:

The personal representative acts as a fiduciary, meaning they have a legal obligation to act in the best interests of the estate and its beneficiaries.The personal representative may receive compensation for their services, as outlined in the will or determined by the probate court.The personal representative’s duties may vary depending on the complexity of the estate and the provisions of the will.

Joint tenancy with right of survivorship (JTWROS) is a form of ownership where two or more individuals jointly own an asset, such as real property or financial accounts. Upon the death of one joint tenant, their ownership interest automatically passes to the surviving joint tenants, bypassing the probate process.

Key Characteristics:

Equal Ownership: 

Each joint tenant holds an equal share of ownership in the asset.

Automatic Transfer: 

Upon the death of a joint tenant, their ownership interest automatically transfers to the surviving joint tenants.

No Probate: 

JTWROS avoids the probate process, simplifying the transfer of assets.

Considerations:

Shared Ownership: 

All joint tenants have equal ownership rights, including the right to use and occupy the property.

Potential Tax Implications: 

Depending on the value of the asset, there may be tax implications for the surviving joint tenants.

Estate Planning: 

JTWROS may not be suitable for all estate planning goals.

Example:

Sarah, John, and Emily own a house together as joint tenants with right of survivorship. When Sarah passes away, her ownership interest automatically transfers to John and Emily, without going through probate. John and Emily now own the house equally.

Testate describes an individual who has created a valid Last Will and Testament, outlining their wishes for the distribution of their assets upon their passing. In such cases, the estate is administered according to the instructions laid out in the will.

Key Characteristics:

Existence of a Will: 

A testate individual has a legally recognized will that specifies their intentions for asset distribution.

Will’s Precedence: 

The will’s provisions supersede the default inheritance laws and dictate how assets are distributed.

Probate Process: 

The estate is typically subject to the probate process, which involves court oversight to ensure the will’s validity and enforce its provisions.

Example:

Upon John Smith’s passing, it is discovered that he left a valid will, making him testate. The will details how John’s property, investments, and personal belongings should be distributed among his designated beneficiaries. The probate court will review the will and oversee its execution, ensuring that John’s wishes are carried out.

Intestate describes an individual who has passed away without leaving a valid Last Will and Testament. In such cases, the distribution of their assets is governed by the laws of intestacy, which vary from state to state.

Key Characteristics:

Absence of a Will: 

An intestate individual lacks a legally recognized will that specifies their wishes for asset distribution.

State Intestacy Laws: 

The state’s intestacy laws determine how the deceased’s property is distributed, typically prioritizing surviving family members.

Court Oversight: 

The probate court oversees the administration of the estate, ensuring that assets are distributed according to the intestacy laws.

Example:

Upon Jane Doe’s passing, it is discovered that she did not leave a will, making her intestate. The probate court will follow the intestacy laws of Jane’s state to distribute her property among her surviving spouse, children, and other eligible relatives.

A codicil is a legal document that serves as an amendment or supplement to an existing will. It allows the testator (the person who made the will) to modify or add to the provisions of the original will without having to create an entirely new one. Codicils are often used to make minor changes, such as updating beneficiary information, adding or removing beneficiaries, or assigning specific assets to particular individuals.

Key Characteristics:

Amendment to an Existing Will: 

A codicil does not replace the original will; it simply modifies or adds to its provisions.

Formal Legal Document: 

A codicil must be executed with the same formality as the original will, including signing, witnessing, and notarization.

Limited Scope: 

Codicils are typically used for minor changes; substantial changes may require a new will.

Advantages of Using a Codicil:

Simplicity and Cost-Effectiveness: 

Codicils are often simpler and less expensive to create than entirely new wills.

Flexibility: 

Codicils allow for targeted changes without affecting the overall structure of the will.

Time-Saving: 

Codicils can be used to quickly address changes in circumstances without the need to redraft the entire will.

Example:

John Smith has a will that leaves his property to his wife and children. After his wife passes away, John wants to make changes to his will to include a specific bequest for his grandchildren. Instead of creating a new will, John can add a codicil to his existing will, outlining the specific bequest for his grandchildren.