What is Probate? Informal and Formal Probate Explained

A question that always arises during estate administration consultations is “What is this probate process I keep reading about?” Probate is defined as the legal process that happens after a person dies, regardless of whether the person died with or without a valid will. The probate system serves three purposes: 1) it ensures that a decedent’s heirs/beneficiaries hold marketable title to property received from the decedent’s estate; 2) serves to protect the decedent’s creditors (which includes local, state, and federal taxing authorities); and 3) provides for an orderly distribution of the decedent’s possessions to the heirs and beneficiaries.

 

According to the Uniform Probate Code, Article III addresses Probate of Wills and Administration of Estates. Probate may take one of two basic forms: informal and formal.

 

In today’s legal world, informal probate is the default process, especially if the value of the estate is of small or moderate value and there are a limited number of heirs or beneficiaries.

 

During the informal probate process involving a will, the executor first files a petition with the surrogate court to admit the deceased person’s will. This petition is simple to fill out and can be filled out online with the county’s surrogate court. (In order to determine the county in which to file the petition, you file the petition in the county that the deceased person resided in at the time of death). Once you file the petition, the court assesses the decedent’s will to determine if it is valid. If the court deems the will valid, letters of testamentary are provided to the executor. It is the executor’s job to notify any interested parties within thirty days of appointment. The interested parties would be any beneficiaries.

 

If you are dealing with a deceased individual that did not have a will, you will petition the court to appoint a personal representative. The court will appoint a personal representative, also known as the administrator, which is decided based on state law. It will usually start with the married spouse and end with relatives. After appointing the personal representative, the court will provide letters of administration to the administrator. Similarly once you receive the letters of administration, the administrator has thirty days to notify any interested parties. State law dictates who will receive the estate based on the intestacy statute.  

 

The executor/personal representative will perform their duties without court supervision. However, the decedent’s will can be challenged by any interested party within the appropriate time outlined under the law. Once there is a challenge to the will, you enter the formal probate proceedings. During formal probate, the court will supervise the administration of the estate. Court approval may be required before the executor/personal representative can sell estate assets, borrow, lease, or mortgage estate property, pay debts and attorney’s fees, or collect commissions. Of course, the cost of formal probate is higher than that of informal probate.

 

It always helps to have an experienced attorney to aid in the estate administration process. Hiring an attorney takes some pressure off of the executor/personal representative especially when dealing in the formal probate realm.