Probate

The court process by which a WILL is proved valid or invalid. The legal process wherein the estate of a decedent is administered.

When a person dies, his or her estate must go through probate, which is a process overseen by a probate court. If the decedent leaves a will directing how his or her property should be distributed after death, the probate court must determine if it should be admitted to probate and given legal effect. If the decedent dies intestate—without leaving a will—the court appoints a PERSONAL REPRESENTATIVE to distribute the decedent's property according to the laws of DESCENT AND DISTRIBUTION. These laws direct the distribution of assets based on hereditary succession.

In general, the probate process involves collecting the decedent's assets, liquidating liabilities, paying necessary taxes, and distributing property to heirs. Probate procedures are governed by state law and have been the subject of debate and reform since the 1960s. The UNIFORM PROBATE CODE (UPC) was first proposed in 1969 by the National Conference of Commissioners on Uniform State Laws and the House of Delegates of the AMERICAN BAR ASSOCIATION. The prime focus of the UPC is to simplify the probate process. The UPC, which has been amended numerous times, has been adopted in its entirety by 16 states: Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota, and Utah. The other 36 states have adopted some part of the UPC but still retain distinct procedures.

Guardianship of Minor Children

Wills often contain instructions on who should be appointed legal guardian of the decedent's minor children. The probate court may investigate the qualifications of the proposed guardian before granting an order of appointment. When a will does not contain a guardianship provision, the court itself must determine, based on the best interests of the children, who should be appointed guardian.

Right of Review

A right of appeal from a probate decree is given to any person who would suffer a direct financial loss as a result of the decree. The appellate court is restricted to a consideration of the questions presented to and determined by the lower court. An issue not presented to the probate court usually will not be considered.