What is Probate? Key Definitions

Probate

Probate is the legal process of settling an estate after a person has died.  A petition must be filed with the court and a personal representative must be appointed to administer the deceased estate.

Often, the term probate is used to refer to the entire process of “probating” an estate. In this context, it denotes the whole process that gathers all available assets, pays outstanding debts, taxes, administrative expenses, and finally makes the specified distribution of remaining assets to those persons or entities designated by the will.

Personal Representative

The personal representative  named in the will is legally in charge of “probating” an estate 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. Specifically, the personal representative oversees:

  • Collection, inventory, and appraisal of assets of the person who has died
  • Protection of the estate’s assets
  • Payment of the debts of the deceased
  • Distribution of the remaining assets to the proper parties

The personal representative is 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).

Often, the personal representative is legally entitled to a reasonable fee for their services.

Formal Probate Court

A probate court deals with the administration of the estate of deceased persons. In Minnesota, District Courts serve as probate courts.

These courts oversee administration and distribution of the assets of the deceased, certify the validity of wills, enforce the provisions of a valid will (by issuing the grant of probate), prevent improper action by administrators of estates, and provide for the equitable distribution of the assets of persons who die without a valid will.

If there are disputes regarding an estate, the court ultimately decides who is to receive the property of a deceased person. The court can be petitioned by parties that are interested in or who have claims against an estate, such as when a beneficiary feels that an estate is being mishandled or someone to whom the deceased owed money. The court also has the authority to demand that a personal representative give an account of their actions on behalf of an estate.

Informal Probate

In Minnesota, Informal Probate is processed through the Probate Registrar instead of a District Court. Informal probate is an unsupervised probate process that is absent of complexity and problems that need court involvement, protection, supervision, or adjudication.  It may be used when there is a need to begin the probate process in a short amount of time.

Testate

This refers to a person who has died and left a “Last Will and Testament” that specifies their wishes pertaining to the distribution of the assets of their estate following their death. In this case, the estate will be distributed according to the provisions of the will.

Intestate

This refers to a person who has died and did not leave a “Last Will and Testament”. In this case, the administration of the estate will be handled by the court of jurisdiction and according to the laws of the state.

Joint Tenancy With Rights of Survivorship

Joint tenants (or tenancy) with right of survivorship (JTWROS) is a type of ownership of real property or financial assets in which all joint owners have equal portions of ownership that are immediately re-allocated to remaining owners if one or more owner dies.

Codicil

A codicil is a document, attachment, or rider that is added to an existing will that modifies or supersedes existing provisions or adds new provisions. This is done as an alternative to redrawing the entire will and is often done to change a beneficiary or assign disposition of a particular property or define the rights of a specific beneficiary.

Leave a Public Comment