Resources About Us Careers Login
Blog

What is Probate?

By Katherine Crowell

May 28, 2020


Probate is the legal proceeding in which a deceased person’s Last Will and Testament is presented to the court. This court has legal authority, or jurisdiction, over the settlement of estates.

These courts have various names depending on where it’s located:

  • Probate court

  • Surrogate’s court

  • Orphan’s court.

We’ll just call it the “Court” for our purposes.

What’s the purpose of a probate?

The purpose of probate is so that the Court can determine whether or not the Will is valid. If the Court determines that the Will is valid, then the Will is said to have been “probated.” This means it is proved.

What is the probate process?

The Court will also appoint an executor who will be responsible for carrying out the terms of the Will. This person is sometimes called a “personal representative.”

The Court will also appoint a guardian for any minor children, if necessary. An example of this happening is if there is no living parent remaining.

The Court will supervise how the executor handles the administration of the estate. For example, typically the executor will have to submit paperwork to the Court, called an “account,” that shows:

  • all of the assets in the estate as of the beginning of the estate administration (the date of death),

  • any income earned by the assets during the period of the estate administration,

  • any debts, expenses, and taxes paid during the estate administration, and

  • the proposed amounts to be distributed to the beneficiaries.

In some jurisdictions the Court itself will examine the account and approve or disapprove it. In other jurisdictions the Court will only consider objections if someone else (for example, a beneficiary) brings them up.

Do I need probate if the estate is small?

Many states have small estate proceedings designed to handle estates with a value less than a certain amount. This is typically some number around $25,000 -$40,000 or even more.

If the probate assets are worth less than the specified amount, then the Will does not have to be probated. Rather, there is a simplified procedure that allows the probate assets to be distributed in accordance with the Will. This procedure is typically inexpensive.


Excerpt from the book Estate Planning for the Savvy Client: What You Need to Know Before You Meet With Your Lawyer by Mary L. Barrow, Esq.

Copyright ©2020, 2017 by Mary L. Barrow

THIS EXCERPT IS A BRIEF SUMMARY FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE USED AS A SUBSTITUTE FOR THE ADVICE OF COMPETENT LEGAL COUNSEL FROM AN ATTORNEY ADMITTED OR AUTHORIZED TO PRACTICE LAW IN YOUR JURISDICTION. YOU SHOULD ALWAYS CONSULT YOUR ATTORNEY BEFORE IMPLEMENTING OR CHANGING ANY ESTATE PLANNING STRATEGY.