Probate

The court process by which a Will is proved valid or invalid. The legal process wherein the estate of a dec
edent isadministered.

When a person dies, his or her estate must go through probate, which is a process overseen by a probate
court. If thedecedent leaves a will directing how his or her property should be distributed after death, the
probate court must determine ifit should be admitted to probate and given legal effect. If the decedent die
s intestatewithout leaving a willthe courtappoints a Personal
Representative to distribute the decedent's property according to the laws of Descent and
Distribution. These laws direct the distribution of assets based on hereditary succession.

In general, the probate process involves collecting the decedent's assets, liquidating liabilities, paying nec
essary taxes, anddistributing property to heirs. Probate procedures are governed by state law and have b
een the subject of debate and reformsince the 1960s. The Uniform Probate
Code (UPC) was first proposed in 1969 by the National Conference ofCommissioners on Uniform State L
aws and the House of Delegates of the American Bar
Association. The prime focus ofthe UPC is to simplify the probate process. The UPC, which has been a
mended numerous times, has been adopted in itsentirety by 16 states: Alaska, Arizona, Colorado, Florida
, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska,New Mexico, North Dakota, South Caro
lina, South Dakota, and Utah. The other 36 states have adopted some part of theUPC but still retain distin
ct procedures.

Probate of a Will
The probate of a will means proving its genuineness in probate court. Unless otherwise provided by statut
e, a will must beadmitted to probate before a court will allow the distribution of a decedent's property to th
e heirs according to its terms.

As a general rule, a will has no legal effect until it is probated. A will should be probated immediately, and
no one has theright to suppress it. The person with possession of a will, usually the personal representati
ve or the decedent's attorney,must produce it. Statutes impose penalties for concealing or destroying a wi
ll or for failing to produce it within a specifiedtime.

Probate proceedings are usually held in the state in which the decedent had domicile or permanent reside
nce at the time ofdeath. If, however, the decedent owned real property in a another state, the will disposin
g of these assets must also beprobated in that state.To qualify as a will in probate, an instrument must be
of testamentary character and comply with allstatutory requirements. A document is testamentary when it
does not take effect until after the death of the person making itand allows the individual to retain the pro
perty under personal control during her or his lifetime. A will that has been properlyexecuted by a compet
ent personthe testator
as required by law is entitled to be probated, even if some of its provisionsare invalid, obscure, or cannot
be implemented.
A will made as a result of Fraud or Undue
Influence or a will that has been altered so that all its provisions are revoked willbe denied probate. If the
alteration only revokes certain provisions of the will, the remaining provisions can be admitted toprobate.

All separate papers, instruments, or sheets comprising the most recent of a testator's wills will be admitte
d to probate.Where a later will does not explicitly revoke all prior wills, two separate and distinct wills can
be probated. Probate courtsseek to carry out the declared intention of a testator regarding the disposition
of property, and they resort to distributingproperty according to the law of descent and distribution only wh
ere no reasonable alternatives exist.

As a general rule, the original document must be presented for probate. Probate of a copy or duplicate of
a will is notpermitted unless the absence of the original is satisfactorily explained to the court. If a properly
proved copy or duplicate ofa will that has been lost or destroyed is presented to the court, it may be admi
tted to probate. Some states have specialproceedings to handle such occurrences. A thorough and dilige
nt search for the will is necessary before a copy can beprobated as a lost will.

A codicil, which is a supplement to a will, is entitled to be probated together with the will it modifies, if it is
properly executedaccording to statute. If it is complete in itself and can stand as a separate testamentary i
nstrument independent of the will,the codicil alone can be admitted to probate. A codicil that has been su
bsequently revoked by another codicil is not entitledto probate.

A will made in a foreign language will be admitted to probate if the testator understood what it contained a
nd it otherwisecomplies with other statutory requirements. A translation usually must accompany the will.

Proceedings
A probate proceeding may involve either formal or informal procedures. Traditionally, probate proceeding
s were governed byformal procedures that required the probate court to hold hearings and issue orders in
volving routine matters. Consequently,the legal costs of probating an estate could be substantial. States t
hat have adopted the UPC provisions on probateprocedures allow informal probate proceedings that rem
ove the probate court from most stages of the process, with theresult that informal probate is cheaper and
quicker than formal probate. Most small estates benefit from an informal probateproceeding.

The probate process begins when the personal representative files with the clerk of the probate court a co
py of the deathcertificate along with the will and a petition to admit the will to probate and to grant letters t
estamentary, which authorize himor her to distribute the estate. Although the personal representative usu
ally files the probate petition, it can be filed by anyperson who has a pecuniary interest in the will. In state
s governed by the UPC, the personal representative must electwhether to proceed with formal or informal
probate at the time of filing. However, a probate proceeding may be switched frominformal to formal duri
ng the course of administration, if issues so warrant.

In a formal probate proceeding, a hearing must be held to establish the death of the testator, the residenc
y of the decedent,the genuineness of the will, its conformance with statutory requirements for its executio
n, and the competency of thetestator at the time the will was made. These requirements are usually fulfille
d by the attesting witnesses who were presentat the time the will was made and who certify that it was pr
operly executed. The number of attesting witnesses is prescribedby law. If fewer than the required numbe
r witness a will, it will be declared void, and the testator's property will passaccording to the laws of desce
nt and distribution.

When some or all of the witnesses to a will are unavailable, special steps are taken. If the required witnes
ses have diedbefore the testator, the person offering the will must offer proof of death, in addition to evide
nce of the genuineness of thesignatures and any other proof of execution available. The UPC simplifies w
itness issues by permitting the admission of"self-
authenticating" wills. These wills contain a statement signed by the witnesses that attests to the competen
cy of thetestator and other statutory requirements. Self-
authentication relieves the witnesses of the burden of appearing in court andthe personal representative o
f costly procedures if the witnesses are unavailable.

If no one objects to the will at the hearing, it will be admitted to probate.

Informal probate proceedings generally do not require a hearing. The personal representative files the de
ath certificate andwill, along with a petition to admit the will under informal probate. The clerk of probate c
ourt reviews the submissions andrecommends to the court that the will be probated. Once the court issue
s the order for informal probate, the personalrepresentative files a series of forms that demonstrate that n
otice has been given to all interested parties about the probate,the decedent's creditors have been paid, a
nd the estate's assets have been collected, appraised, and distributed to thedesignated heirs.

Contested Probate Proceedings

The probate of a will can be opposed or contested on the ground that the instrument is void because of th
e testamentaryincapacity of the testator at the time the will was made, the failure to comply with the forma
lities required by law, or anymatter sufficient to show the nonexistence of a valid will. When a will is conte
sted, formal proceedings are required.

Will contests are concerned only with external validity, such as failure of due execution, fraud, mistake, un
due influence,lack of testamentary capacity, or lack of intent that the instrument be a will. Issues of intern
al validity, such as violation ofthe Rule against
Perpetuities, must be raised in proceedings at a later stage of administration. Although a will has beenpr
obated as a genuine expression of the testator's intended distribution of property upon her or his death, th
e estate mightbe disposed of according to the laws of descent and distribution if the testamentary provisio
ns violate the law.

Only a person having some interest that will be affected by the probate can contest it. Such persons inclu
de next of kin whowill receive property if the will is set aside and intestacy results, purchasers of property f
rom the heir or heirs, administratorsor personal representatives under prior wills, and the state, if there is
a possibility of Escheat, which means that thegovernment will receive the property if no living heirs can b
e found. Creditors, however, generally are not entitled to contestthe will of a debtor.

A personal representative must defend the will against attack and must employ his or her best efforts to h
ave it sustained ifhe or she reasonably believes that the will is valid.
Methods by which a will can be contested generally include a contest in the court having jurisdiction over
probate, an appealfrom the order granting or denying probate, and separate actions to set aside the order
granting or denying probate.

There is no constitutional right to trial by jury in probate or will contest proceedings. Most states, however,
have statutesmaking a trial by jury available in a will contest. Statutes usually impose time limits on the in
stitution of will contests.

Agreement not to Contest

A testator can enter into a contract with her or his heirs in which they agree not to contest a will. If the con
tract is supportedby considerationsomething of value
and the agreement is otherwise valid, the heirs will be prevented from contesting thewill. The beneficiarie
s under a will and the heirs can enter into a valid contract not to contest a will. States vary as to theremedi
es a party to an agreement not to contest a will has upon breach. These include an Injunction against th
eprosecution of the contest, an action at law for damages, or a defense to the contest.

An agreement among heirs and beneficiaries not to contest a will is a way to avoid a costly will contest pr
oceeding. Theheirs and beneficiaries negotiate a settlement that may defeat the intention of the testator i
n how the assets are distributed.A settlement will be valid if all interested parties agree, but it must not ex
clude anyone entitled to property under the will.Under some statutes the compromise or settlement must
be submitted to the probate court for approval.

Guardianship of Minor Children

Wills often contain instructions on who should be appointed legal guardian of the decedent's minor childre
n. The probatecourt may investigate the qualifications of the proposed guardian before granting an order
of appointment. When a will doesnot contain a guardianship provision, the court itself must determine, ba
sed on the best interests of the children, who shouldbe appointed guardian.

Right of Review
A right of appeal from a probate decree is given to any person who would suffer a direct financial loss as
a result of thedecree. The appellate court is restricted to a consideration of the questions presented to an
d determined by the lower court.An issue not presented to the probate court usually will not be considered
.