The basic responsibilities of the probate court are:
To determine the validity of a will
To fairly and equitably distribute the assets of a deceased person to the beneficiaries named in a will, or if a person dies intestate, to the heirs as specified by a state's intestacy laws
To ensure that a decedent's taxes and debts are paid
To protect orphaned minor or disabled children and their property after a parent has died
To adjudicate all conflicting claims among creditors and/or heirs of an estate
But most estates are actually settled and closed without any intervention of a probate court at all. Or, if a court does get involved, issues are often resolved without the necessity of a court hearing or full probate administration. This is because in the majority of cases:
There were insufficient probate assets to distribute, or they were all given away before death
There were no orphaned minor or disabled children designated as heirs or beneficiaries
All assets were held in trust, or jointly owned with right of survivorship
All assets, like life insurance policies or other accounts, specified a designated beneficiary, bypassing probate, altogether
In these situations, and even in some cases where there are probate assets, an estate can often be settled by procedures that are quicker, simpler and less expensive than full probate administration.
For example, in most states, some types of property (such as automobiles, personal and household effects, traveler's checks, certain employee fringe benefits such as accumulated vacation and sick pay, etc.) can be transferred outside of the probate process.
Probate in UPC States
In cases where some form of probate is necessary, the Uniform Probate Code (UPC), adopted in its entirety by 17 states, classifies probate administration into three categories: informal, unsupervised formal, and supervised formal.
Informal Probate Administration
Most probates in UPC states are informal. The entire process can be completed just with paperwork alone, and with no court hearings necessary. The first step in an informal probate occurs when an "interested person," usually a close kin of the deceased, files an application with the probate court, requesting to serve as the "personal representative" (known as the executor in non-UPC states) of the decedent's estate.
Upon approval of the application, the claimant receives "letters or testamentary" if there is a will, or "letters of administration," if the decedent died intestate, allowing him or her to legally act on behalf of the estate.
In some states, the appointment of a personal representative is not complete until that person is "bonded." The bond is insurance that the duties of personal representative will be faithfully performed and that estate assets will not be wrongly appropriated or spent. A "surety bond" is an agreement that an insurance company will be liable for any misappropriation or misuse of funds.
In informal probate administration, the personal representative must:
Locate a will if there is one
Petition the court for probate of the will or administration of the estate
Identify and communicate with any known beneficiaries, heirs and creditors
Publish a notice in a local newspaper seeking any unknown beneficiaries, heirs or creditors
Inventory and appraise the decedent's assets
Properly distribute the decedent's property
Settle all claims, pay all taxes and probate expenses
The estate can then be "closed" by filing a "final accounting" with the court and a "closing statement" attesting to the payment of all debts and taxes and the final distribution of property.
The UPC also provides for informal probate administration if the survivors include a spouse and minor children. If, after an inventory and appraisal of the decedent's property is filed by a properly appointed personal representative, and certain statutory requirements are met, like the paying of funeral and final health care costs of the deceased, as well as administration expenses, and the value of the estate does not exceed the state's "family protection allowances," property may be distributed to the spouse and minor children without giving the normally required notice to any of the decedent's creditors.
Unsupervised Formal Probate Administration
In UPC states, unsupervised formal probate administration occurs without court action unless requested by an interested person. A probate court judge will only intervene if there is a sufficient reason; for example, if there is a disagreement over the distribution of an estate's assets, if there is no valid will and heirs need to be determined, or if there are orphaned minor children inheriting significant property.
In some cases of unsupervised formal probate, permission from the court may be required to sell a decedent's real estate, distribute property to beneficiaries, or pay other probate expenses.
Supervised Formal Probate Administration
Supervised formal probate is the rarest form of probate administration. It occurs under the continuing authority of the court if and when the court finds it necessary to actively supervise the probate procedure because:
A will is deemed invalid or a person dies intestate
The decedent's assets exceed a state's maximum for small estate transfers
There are complex or conflicting claims on a decedent's estate by heirs or beneficiaries
A beneficiary, like a minor child, needs the court's protection to look after his or her interests
There are complex and conflicting claims made by creditors
There are tax problems and/or discrepancies
Any other reason deemed necessary by the court after a petition to initiate probate is filed
Supervised formal probate will usually necessitate one or more court hearings and may or may not require the services of a probate attorney.
Probate Administration in Non-UPC States
States that do not conform to the UPC (and sometimes, individual counties) apply different classifications for abbreviated procedures, sometimes known as "small estate transfer by affidavit," or "summary" probate administration.
Each jurisdiction has its own laws and processes, so, in every case, it is necessary to investigate the precise methods applicable to determine how to settle a decedent's estate, and whether or not the services of a probate attorney are required or advisable.
Transfer by Affidavit
Transfer by affidavit is an informal, shortcut procedure for the settlement of small estates, usually defined as property not exceeding a specified maximum amount – generally $10,000 to $150,000. It is utilized in some form by 30 states and can eliminate the need for a court-appointed estate executor, probate court administration, or notification of an estate's creditors. The transfer by affidavit form can be obtained from a financial institution holding a decedent's assets.
In a transfer by affidavit, a claimant who is legally entitled to inherit assets – usually by instructions in a will – can use the procedure to collect money from a decedent's bank accounts, insurance policies, money market funds, securities, safe deposit boxes, etc., as long as the total amount does not exceed the state's specified limits. The transfer of affidavit can also be used to claim any debts owed to the decedent.
In some states, a waiting period follows a death, and small estate transfers by affidavit generally cannot be used for settling or distributing a decedent's real estate. In a few states, creditors must be paid first before any assets are awarded to the claimant and in other states the procedure is only available if there is no granted or pending petition for the appointment of an executor.
Most non-UPC states also offer an abridged probate procedure, sometimes called "small estate" or "summary" probate administration. This type of process is usually available if:
- A decedent's probate assets exceed the maximum amounts allowable under transfer by affidavit
- The assets include real estate
- The assets otherwise do not qualify for the simpler method
In addition, there must be no objection by an interested party and the will, if there is one, must not otherwise prohibit it.
While a court hearing is not required for a summary probate administration, a claimant must still petition the appropriate probate court to issue an order specifying a survivor's right to acquire a decedent's property. The petition must include an inventory and appraisal of all of the decedent's assets and their gross value. If the petition is granted, an order will be issued awarding title to the claimant.
Summary probate administration is available in 41 states but not all of them allow the procedure to be applied to the transfer of real estate. A few states require creditors to be paid first. If an estate does not qualify for summary probate, it must undergo full, formal probate administration.
Ancillary administration is a proceeding in a state where a decedent had real property but is not where he or she died or where the main estate was administered. In ancillary administration, the probate court in the "foreign" state will administer probate after it has been completed in the decedent's "domiciliary" state.
Most states have provisions for allowing a copy of a will and/or a copy of a personal representative's appointment, to be filed and admitted into the record. However, some states require the appointment of a different executor to administer the decedent's property.