A Guide to Probate and Estate Administration
"Probate" generally refers to the court procedure under which a decedent's Will is proved to be valid; however, use of the term has expanded to generally include all matters and proceedings pertaining to the administration of estates, including decedent's estates, guardianship estates, and trusts.
Probate or nonprobate Assets
A decedent's estate may consist of "probate" assets, "nonprobate" assets, or a mixture of both. Probate assets "pass through" the decedent's Will (i.e. the Will controls its disposition). If there is no Will (or alternative to a Will, such as a Revocable Living Trust), disposition of this property is controlled by the descent and distribution statutes. "Nonprobate" assets pass upon the owner's death to one or more persons pursuant to a written instrument or contractual arrangement other than a person's Will. For example, life insurance proceeds, annuities and IRAs payable directly to third parties after the owner's death are common nonprobate assets.
If a decedent dies with very little property, or made alternative arrangements for the nonprobate transfer of most assets, formal probate proceedings may not be necessary. For example, if a decedent owned no real estate and total probate assets are $100,000 or less, this property may be transferred by a Small Estate Affidavit Procedure. Even if no formal probate proceedings are instituted, a spouse, domestic partner, or child of a decedent may have the right to file a Petition for Award of Family Support and arrangements may be made for the Settlement of Creditors Claims without Probate.
Formal Probate Proceedings
If a person dies with a Will, formal probate proceedings are initiated by filing a Petition to admit the Will to probate and appoint an Executor of the decedent's estate. If a person dies without a Will, formal probate proceedings are initiated by filing a Petition identifying the decedent's legal heirs under the descent and distribution statutes, and seeking the appointment of an Administrator. The Executor or Administrator has the responsibility of asserting control over the decedent's probate assets, paying creditors and taxes, and other routine estate administration matters. Other issues that may crop up include Will Contests, a Petition for Award of Family Support, and claims asserted against the estate by an Omitted Child, Spouse, or Domestic Partner of the decedent.