Define: Probate

Probate is the legal process through which the assets and estate of a deceased individual are administered, managed, and distributed according to their will or state law. The probate process involves validating the deceased person’s will (if one exists), appointing an executor or administrator to oversee the estate, identifying and inventorying assets, paying debts and taxes, and distributing remaining assets to heirs or beneficiaries. Probate ensures that the deceased’s wishes are carried out and that assets are transferred in a fair and orderly manner. The complexity and duration of probate proceedings can vary depending on factors such as the size of the estate, the presence of a valid will, and any disputes among heirs or beneficiaries.

1. n. the process of proving a will is valid and thereafter administering the estate of a dead person according to the terms of the will. The first step is to file the purported will with the clerk of the appropriate court in the county where the deceased person lived, along with a petition to have the court approve the will and appoint the executor named in the will (or, if none is available, an administrator) with a declaration of a person who had signed the will as a witness. If the court determines the will is valid, it then “admits” the will to probate.
2. n. a general term for the entire process of administering the estates of dead persons, including those without wills, with court supervision. The means of “avoiding” probate exist, including creating trusts in which all possessions are handled by a trustee, making lifetime gifts, or putting all substantial property in joint tenancy with an automatic right of survivorship in the joint owner. Even if there is a will, probate may not be necessary if the estate is small with no real estate title to be transferred or if all of the estate is either jointly owned or community property. Reasons for avoiding probate are the fees set by statute and/or the court (depending on state laws) for attorneys, executors, and administrators; the need to publish notices, court hearings, and paperwork; the public nature of the proceedings; and delays while waiting for creditors to file claims even when the deceased owed no one.
3. v. to prove a will in court and proceed with the administration of a deceased’s estate under court supervision.
4. adj. reference to the appropriate court for handling estate matters, as in “probate court.

In England and Wales, Probate is the word normally used to describe the legal and financial processes involved in dealing with the property, money and possessions (called the assets) of a person who has died.

The primary purpose of a probate proceeding is to make sure all of the decedent’s debts are paid and that the remaining property is transferred to the persons who are legally entitled to it.  In the UK, different methods are used, depending on the fair market value of the assets and how title is held.

Before the next of kin or executor named in the will can claim, transfer, sell, or distribute any of the deceased’s assets, they may have to apply for probate.

When probate has been granted through a grant of probate or Letters of Administration the next of kin or executor can start to deal with the deceased person’s assets in accordance with their will.

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 13th April, 2024.