Jennifer Haslip

When a person dies, many times their estate must go through probate, which is a process overseen by a probate court.  If the decedent leaves a will directing how their property should be distributed after death the probate court must determine if it should be admitted to probate and whether the will is deemed valid.  If the decedent dies intestate, without a will, the court appoints a Personal Representative to distribute the decedent’s property according to the laws of Descent and Distribution. 

In general, the term probate is also frequently used to refer to the entire process of “probating” an estate.  In this usage, it refers to the process of liquidating liabilities, paying necessary taxes, administrative expenses and distributing property to the heirs i.e. those persons designated in the will.

The personal representative (a.k.a. the executor or executrix) is named in the will and is legally responsible for handling administration of the estate as set forth by the probate laws and procedures of their state. The personal representative is held accountable for their actions and decisions by the heirs, other beneficiaries and in some cases may be formally supervised by a probate court. If a will does not exist or a personal representative is not designated in the will, the court will appoint one if there is personal property to distribute. The personal representative is often entitled by law to a reasonable fee or commission for their services.

Probate law generally encourages or provides for partial distributions of funds during the period of administration and assets are often distributed “in kind” rather than sold during this period. Tax laws generally look to the personal representative as being responsible for making death tax filings and other tax payments from the outstanding assets of the deceased.  Therefore, choosing a personal representative is an important decision.

The basic job of administration and accounting for assets must be done whether the estate is handled by a personal representative as part of the probate process or if probate is avoided. In the recent past, lawyers and other professionals have advocated the use of probate avoidance techniques (such as revocable trusts, etc.) in states where the probate process has been seen to be too slow and overly expensive. In recent years, many states have simplified their probate processes.  Depending upon the size and complexity of the estate different strategies are advisable.