The term “probate” is the process by which sufficient evidence is presented to the probate court to allow the court to determine that a will is valid and therefore can be “admitted to probate.”
Common parlance equates probate with an all encompassing post-death procedure which involves:
- Admitting a will to probate or determining that the decedent died without a will
- Determining heirs of the decedent
- Appointment of an Executor or Personal Representative with authority to act on behalf of the probate estate
- Estate administration or the gathering of a decedent’s assets, paying bills, taxes and expenses by the Personal Representative
- Approval by the court of all receipts and disbursements of the executor or personal representative
- A court order or decree which follows the will and directs the personal representative to distribute the decedent’s assets to the persons entitled to them
- And finally being discharged by the court, thus terminating the probate
The ultimate goal of these proceedings is the transferring of title to remaining assets from the deceased to those named in the will.
There are special procedures by which emergency and unusual situations may be attended to.
There is another type of probate (with which most people are not familiar.) This is for situations where an individual is alive, but through disease, accident or injury, is physically or mentally incapacitated and cannot manage his financial affairs (called Conservatorship) or unable to manage his day to day living and medical needs (called Guardianship). A family member, through the probate attorney, asks the Probate Court to appoint the family member as “Guardian” or “Conservator”and to grant authority for the Guardian to manage the incapacitated person’s day to day living and medical needs or grant authority for the Conservator to manage the incapacitated person’s financial affairs, or for both authorities. Understandably, one individual should not be able to take over another individual’s financial or day to day living/medical care decision making without substantial proof of the incapacity. The Probate Court strictly monitors these proceedings and strictly monitors the Guardian or Conservator. Once appointed, the Guardian or Conservator has a range of authority and duties that will be impressed upon him to enable care for the incapacitated person.
This type of probate is easily avoided with proper planning.