Is Probate the same thing as a Will?

August 01, 2023

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A will is a written instrument to outline property distribution upon death. Probate is the procedure whereby wealth, or title to each specific asset held in the name of the decedent, is transferred into the names of the beneficiaries named in the Will or to the heirs in the case where there is no Will.  First, a Will must qualify for admission to probate.  Generally, a testator must be of a certain age, usually 18; must not execute a Will as a result of undue influence or fraud; and must be mentally competent to make a Will.  If the decedent had a valid Will, it is admitted to probate upon application by a proposed executor or administrator.  If the decedent had no Will, the estate is still subject to estate administration; however, title is transferred to the heirs as set forth by state law.  Certain assets, such as property owned as joint tenants with right of survivorship, insurance proceeds and retirement accounts with named beneficiaries, and revocable trusts are called non-probate assets and do not go through estate administration.

Probate is a court supervised process and state law sets forth the exact procedure to be followed. The executor generally files an inventory with the court listing the fair market value of assets and debts. Notice to creditors is part of every probate, in order to notify them of the death so they may file a claim for unpaid amounts owed to them.  Once all claims, debts and taxes have been paid, the estate can be closed after the executor has filed an accounting and final report with the court.  Distribution to beneficiaries can now be made, although in many cases a partial distribution can be made before the estate is closed.  Many states provide simplified procedures for small estates or estates where the assets pass entirely to family members and all beneficiaries consent to the simplified administration.


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