Talk:Probate

I'm the person who made the substub. I think the subject is worthy of a wikipedia article. I'm just not qualified to write it.

dont let probate die!

I have no clue how any of this works but my father just passed and did not leave a will. There is no one...never remarried no other children so we are scared that this process would get drug out long and painful. Not sure if he owes any money to state or government and if he did it would be minor. Any insight to how this may play out. We are most concerned his property will get locked up and we will not have access to our fathers personal things. ??? —Preceding unsigned comment added by 97.125.122.67 (talk) 18:45, 12 September 2009 (UTC)

Somebody needs to put information here on the informal and formal probate process from start to finish all the way across that would helpt a lot of people!!!!!!!! —Preceding unsigned comment added by 69.88.77.142 (talk) 21:25, 17 September 2007 (UTC)

It'd be good if you had signed your name. Then we might have a better idea as to what is actually going on here and bounce some ideas off you about how to make this article better. Also, you might consider actually researching the topic and writing at least a complete stub yourself. I'd very much like to hear your ideas on the topic and work with you to flesh this out rather than letting it get ported over to wiktionary...--Jpittman 17:05, 7 Oct 2004 (UTC)

I wrote an article sized article on probate, but my only knowledge is in the US, which I believe is based on English law and custom (but I don't have any idea). Article would benefit from someone more worldly in this matter. Is probate unique to certain countries? Tempshill 18:55, 21 Oct 2004 (UTC)

Not sure, I am an iggurant American. There's a fairly detailed explanation of British probate procedure at administration. Ellsworth 01:01, 6 Feb 2005 (UTC)

English perspective

I've been tweaking the administration pages regarding the English law of succession; I would like to amend the initial definition of probate as here and in Commonwealth countries probate is the term for the process only where there is a will. Could someone clarify if that's the same in the US? I've put in a change but obviously if that should apply to the US too then it'll need changing again.

In the US probate is the generally understood term for the process of administering a will. It is called by different things in different states though. Intestate succession is also handled by probate court in some states, so many people call it probate even if it is technically not (I don't know) I suppose. Is that what you were looking for? - Taxman ^Talk 19:06, August 15, 2005 (UTC)

My attention was also drawn to the point of a trust as entity: is a trust an entity? Not under common law, Hague Convention etc, for tax purposes in the US yes a trust may be treated as an entity but query whether we should be definining what a trust *is* or how *it is treated*. An entity may be created to act as trustee but the trust itself does not have legal form.

Hmm, I'll defer to attny's on this point, but at least in the US a trust is in many cases treated like an entity, especially for taxation as you mentioned. In the case of an irrevocable trust even moreso it seems. The irrevocable trust is no longer the property of the grantor, has its own tax id number, and would be sued separately from the grantor, trustee, and beneficiary I would presume. A living trust would not be a separate entity in most treatments though, so that complicates things too. Though like I said, I'm not an attorney and I'm only familiar with US estate planning. - Taxman ^Talk 19:06, August 15, 2005 (UTC)

MMnn seems non- US probate is simply relegated to a footnote. Not all the world lives in the US ! Why is englishe probate simply headed "see administration". In Australian law probate & administration are two different things, so we still need a section for probate.Suastiastu

The Purpose of Probate

The introductory sentence of this article asserts that "Probate is the legal process of settling the estate of a deceased person; specifically, distributing the decedent's property." In reality, the purpose of probate is twofold. Nominally, it is to distribute the decedent's property to his or her rightful heirs. An equally important function of probate -- some would say the real reason probate exists -- is to notify a decedent's creditors of his or her passing so that said creditors can present legal claims against the decedent's estate. While the heirs of a decedent are most often laypersons, creditors are typically sophisticated and powerful entities who are intimately familiar with the procedures of probate. Without probate, the property of a decedent would pass to his or her heirs, rightful or otherwise, and the creditors would have no opportunity to collect what is due them. In practice, the heirs to an estate, rightful or otherwise, often take what they want without notifying anyone -- i.e., steal anything of value -- and there are no property or funds left to pay the decedent's creditors. // Internet Esquire 01:28, 22 August 2006 (UTC)

The use of the word "probate" to refer to the entire process of administering a decedent's estate, and regardless of whether or not there is a will, always makes me cringe. Although that is a popular meaning of the word, I think than an encyclopedia should be more precise, and that an article on "probate" should be limited to the probate of wills, with a cross-reference to other articles on intestacy and the administration of decedent's estates. Evansdb 12:43, 11 January 2007 (UTC)

=Here in Maryland we see the process of probate (testate and intestate) law as the process: to protect the interests of the decedent and their wishes, to protect the heirs, legatees and claimants, and to protect the tax revenue detailed in Tax General. Contrary to popular belief, most estates have very minimal amounts owed to others. I'm not suggesting that some estates aren't insolvent, however I would not classify probate as the way to "protect" big and powerful and all-knowing entities. Depending on that state, probate law varies wildly. In Maryland, a claimant has six months from the date of death to file a claim against the estate, where most estates takes about a year to probate. So the process is not entirely skewed to protecting debtees...Gcbeehler (talk) 03:00, 9 September 2008 (UTC)

Probative value

That's all very interesting but what about probative valu (The exclusionay discretion and weighing "probative value"? This goes hand in hand with prejudicial impact. Every day judges are faced to weigh the probative value versus the prejudicial impact. (that's why we have a pendulum scale that represents law). Do we make a new article? --CyclePat 20:36, 31 December 2006 (UTC)

Administration of an estate on death

The article Administration "just growed and growed" and had become an umbrella term covering half a dozen different concepts. The largest section was about business administration, so I MOVEd it to Administration (business) and created separate articles for the other topics. Specifically, "Adminstration of an estate on death" covers the legal concept in UK law, but may not be the best title: if anyone can think of a better title, please propose an alternative. --Concrete Cowboy 18:37, 8 January 2007 (UTC)

Are you sure it is the administration of an estate on death... what if you're not dead? Missing? etc... living will? Perhaps Administration (Legal Estate)? (I'm no expert though)--CyclePat 07:02, 9 January 2007 (UTC)

Yes - that is the legal term. Are you confusing "Admistration" v "administration"? The version with a capital A arises if someone dies intestate (no will or no legally valid will). There is a legal process to decide who gets the assets. --Concrete Cowboy 13:15, 9 January 2007 (UTC)

Wow! That's really interesting. But I can't seem to find a credible source for the words you are talking about.

1 - Admistration (as you spelt it on January 9th), in my search could be found in 7 online books from NetLibrary. (None deal specifically with Will or Estate) However, the first one is on p.342-343 of Oil Politics: A Modern History of Petroleum. The digitized version however is diferent from the adobe recognized text as this quote will demonstrate: "But for the time being, in early 2001, US ef[forts] were confined, first, to malilng[making] clear to Iraq, by renewed air attacks on mrlitary[military] installations on the ground, that the new Admistration [Administration] would... than the previous one; and, second, to seelung a revamping sanctions to hurt the government more and the people less." (Parra, Fransico 342-343). My inference is that that the mistake is within the digitizing process and that the word doesn’t really exist in these books.

• Similarly Sams Teach Yourself J2EE in 21 Days allegedly has the term Admistration but when you go to page 54 it is actual "Asadmin"

Furthermore, Meriam-Webster Online[1] and the Online Etymology Dictionary[2] have no definitions for Admistration.

2 - Adminstration (as you spelt it in on January 8th), in my search appears in 85 books. None deal specifically with Wills or Estate. However, there is a book that deals with law of evidence… and ironically it appears to be my specialty (as per the probative value). ‘’ Beyond Reasonable Doubt and Probable Cause: Historical Perspectives On the Anglo-American Law of Evidence‘’ on page 268, which is the notes section states:

“90. Trial of Lyon (1799) for seditious libel, reprinted in Francis Wharton, State Trials of the United States during the Adminstrations of Washington and Adams (Philadelphia, 1849), 333, 336”

Further investigation into the endnote brings us to "Chapter 1, The "Satisfied Conscience" Test and Casuistry[sic], The cases…" or page 24 and states:

“The beyond reasonable doubt standard also appears in a number of U.S. trials around the turn of the century. The 1798 trial of Matthew Lyon for seditious libel in the Circuit Court for the Vermont District indicates that the standard was being applied early in the history of the new nation. The judge informed the jury, "you must be satisfied beyond all reasonable substantial doubt that hypothesis of innocence is unsustainable."”

Nevertheless, Meriam-Webster Online has no definition for Adminstration and furthermore suggests the definition administration, administrations and administrator. Finally, Online Etymology Dictionary has nothing for Adminstration.[ http://www.etymonline.com/index.php?search=Adminstration&searchmode=none]

3 - Administration (as I've spelt it) can be found practically everywhere. So I've limited the search for "Administration of Estate" and found 104 books on NetLibrary. For example, “Dictionary of Legal Terms: A Simplified Guide to the Language of Law” by Gifis, Steven H. , stipulates on p.274:

”LETTERS OF ADMINISTRATION: document issued by a probate court appointing the administrator or ‘’’administratrix’’’[Sic] of the estate of a decedent. If the decedent left a will naming a particular executor or executrix, the corresponding term for the court document is LETTERS TESTAMENTARY. If the decedent left a will but failed to name an executor or the named executor of a will cannot or refuses to serve, the document is termed LETTERS OF ADMINISTRATION CTA. CTA stands for the Latin CUM TESTAMENTO ANNEXO and means "with the will annexed." If a previous administrator or executor fails to complete the administration of the estate the document is called LETTERS OF ADMINISTRATION DBN. DBN stands for the Latin DE BONIS NON and means "goods not administered." Modern usage has favored the term SUCCESSOR ADMINISTRATOR.”

Furthermore this dictionary also references the term LETTERS TESTAMENTARY towards this afformentioned letters of administration.

Other book titles include: “The Complete Idiot's Guide to Wills and Estates”, wich stipulates that “During estate administration (estate's fiduciary tax return) Some estates may have to file federal estate tax returns and state death tax returns.” Or “Mind and Hand: The Birth of MIT”, and “Keeping the Faith: A Cultural History of the U.S. Supreme Court” by Semonche, which states on page 310 “Confronting an Iowa law that gave preference to men in selecting administrators of decedents' estates, they unanimously struck down the preference. Administrative convenience, the Court said, cannot justify the making of "the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment."15” or page 325, “The justices never determined that illegitimacy was a suspect classification and at times recognized a legitimate governmental interest in the orderly administration of estates, but the thrust of the decisions was in the direction of removing the law's reflection of the social opprobrium of illegitimacy.” And finally the most commonly book “CliffsNotes Planning Your Retirement” appears to be the simplest most logical stating that “An attorney who is qualified to practice law in your state knows the laws of inheritance, the system of estate administration, and the proper language of the will.”

We have a bigger issue here. Most of the other books deal with administration of business, real estate, financial planning, etc… (and don’t forget this is a limited search because we added the <of estate>). In fact there are 4775 books with just Administration ranging from themes and title like public management, policing sexual assault, feminism, Criminal Justice, and even Multimedia: Drug Administration by Inhalation: Merck Manual Home Edition. The problem is deeply routed in choosing the proper terminology and having the correct spelling. What term is of larger popularity and abiding by wiki policy. If in fact what you say is true I couldn't find a reliable source for referencing. Could you please send me your references? Thank you! --CyclePat 16:00, 9 January 2007 (UTC)

Further to my research, since I only quote one law book that was created by one author, I decide to check the Oxford online legal dictionary. I still haven't found the terms you mentioned. However, "de bonis non administratis" is a Lating word that makes reference to the letter of administration for an estate or will.

In turn, as I mentioned above, but I will restate, a Letters of administration is an "Authority granted by the court to a specified person to act as an administrator of a deceased person's estate when the deceased dies intestate (Non-Contentious Probate Rules 22).

I think we should concentrate perhaps on terms like "ad colligenda bona [Latin]To collect the goods. The court may grant letters of administration ad colligenda bona to any person to deal with specified property in an estate when that property might be endangered by delay."

Ok, so I mis-spelt it. I'll move it. More to the point, I just unpicked the disparate components a really messy article and pasted this one verbatim. Looking back through the history of Administration (which has been MOVEd to and is now at Administration (business), the person who contributed this material was an anon editor. I have no expertise whatever in this topic, which is why I invited editors from the US-biased probate article. If I may, I will make my excuses and leave! --Concrete Cowboy 18:00, 9 January 2007 (UTC)

I am just folliwing through with everything I do. Quality is sometimes better than quantity. On that note however sometimes the right person can come along and have a good quality comment... or on the other hand they can have a good quality contribution by doing research. Our levels of contributions are somewhat different however we are trying our best. Your global overview and insite into other subjects helped me for example find some interesting sources that we can now add or use in many articles. I hope the information didn't scare you away but instead provided further incite into the real work that needs to be done, not only for this article but most articles on wikipedia. Of course I mean that in the most coloquial (however that is spelt) of ways. Please accept my appology and humble warm welcome to stay and help out. I believe the best way to build something is to become more knowlegeable (specially if you have the time) and to analyse every aspect. --CyclePat 04:42, 10 January 2007 (UTC)

Please do! (No offence taken - I certainly didn't intend to create that impression). All I'm saying is that I'm an "accidental editor" on this one - I created it only because I had to, while sorting out the messy article that was Administration. But I created it by copy/paste (since only one aspect of it can be MOVEd) and otherwise I know nothing about it. None of it is my original work. I really don't believe in editing articles that I don't at least know enough to know what I don't know! I'm very happy to leave it to those who do. --Concrete Cowboy 13:16, 10 January 2007 (UTC)

In Talk:Estate (law) I suggested that a better article title would be "Decedent's Estates" which would differentiate the administration of a decedent's estate from the administration of the estate of a minor, or the administration of the estate of an incompetent or incapacitated person, or the administration of a bankrupt's estate, and would combine Probate (which in the US really refers-technically speaking-only to the proof of the validity of a will) and Administration of an estate on death (which is otherwise the more generic concept, but a longer title than is needed, IMO). Evansdb 12:33, 11 January 2007 (UTC)

It is certainly too long, but anything shorter needs to be precise (and international - I've never seen "decedent" before). Note also that (at present) it is about UK law so that needs to be internationised too. So what is generalised concept called? You are certainly right about the other kinds of Administration - so how about Administration (law) and have sections on the different types of legal Administration? I'm way out of my depth here! --Concrete Cowboy 18:00, 11 January 2007 (UTC)

References

--CyclePat 16:39, 9 January 2007 (UTC)

Question

How illegal is it in the US to squat in a home during probate? 72.15.89.210 07:54, 30 July 2007 (UTC)

What state? Also you'd have to look at squatting laws, and presumably if something is going through the process of probate your claim to that property is probably not sufficient to "squat" there.. Gcbeehler (talk) 01:05, 10 September 2008 (UTC)

By "Squat", do you mean moving into and living in someone else's home, a person you have no connection with? If so, 'squatting is just as illegal as it would be if the person were still alive. Your trespassing. (though you might be slightly less likely to get caught). However, in California, if you occupy a property continuously for 5 yrs, claim ownership, and pay the property taxes, you can ask the Court to declare you the owner by Adverse Possession. —Preceding unsigned comment added by John Gottes (talk • contribs) 01:44, 5 May 2009 (UTC)

Clean Up

This page needs a lot of clean up and referencing. The discussion of "Avoiding Probate" is out of place, doesn't really discuss the topic (there are other reasons to wish to avoid probate), and probate isn't always necessary in the United States. Moreover, most of the discussion (at least as it stands) could be done away with by a reference out to an article on trusts. Most importantly, there is absolutely no reference to the Uniform Probate Code (UPC). Probate in the United States, is a general term for Administration of Estates it is only historically a reference to the proving of wills. Wills are still proved but intestate estates are "probated" as well. The process can vary widely where the UPC has not been adopted. I'm collaborating on a probate practice manual for attorneys and will take a longer look at this as I get more time. Doug. 07:47, 19 August 2007 (UTC)

EstateSettlement.com

In my edit summary for this edit I promised to explain at talk. I see a couple of problems. Firstly, Wikipedia is an encyclopedia, and the tone of this material is entirely wrong for us. That, of course, might have been fixable. However, the fact that the information is copied from a website (EstateSettlement.com) which has a copyright notice means that we cannot accept this material at all. The notice is fairly prominent and reads "© Copyright 2008 All Rights Reserved EstateSettlement.com". See WP:COPYVIO for more detail on this policy. I note the comment "(submitted by site owner)" after the source, but I don't think that's nearly enough to satisfy our copyright policy: it's inconsistent to release material under our licence, GFDL, yet reserve all rights in the same material elsewhere. Besides, we cannot necessarily accept that a user is the owner of another site just because they claim to us that they are. If you still feel this material is appropriate, feel free to discuss the matter, here. AndyJones (talk) 16:09, 25 June 2008 (UTC)

Probate by State

I think it would be a good idea to split or list the process of probate (and non-probate) in each state. Substantial differences can be noted on how each of these systems work, where the buildings are located (i.e. here in Maryland each county has a Register of Wills, which is run by a Registrar who is elected every four years, however the Register of Wills is a division of the Orphan's court, dramatically different who how other states handle their probate courts), what the breakdown is for probate fees, limitations to will registration, are lawyers required for probate, and etc.

I'd be willing to tackle Maryland's probate law, at least from the perspective as an auditor for the state (I assess probate and inheritance tax, and audit accounts to closing), however, it would be goofy to only have a single state's probate law.

Anyways this is more of a ramble, then a concise post, however I'd be willing to work with someone to do some of the probate state pages (I have some experience with Ohio and Florida Probate law as well) Gcbeehler (talk) 01:06, 10 September 2008 (UTC)

Avoiding Probate?

Noticed this addition by Justin D Spealman

"Probate can also be avoided by setting up P.O.D (paid on death) designations on all of your bank accounts and T.O.D (transfer on death) on all your brokerage accounts, 401k's and IRA's that have named beneficiaries will automaticly avoid probate. As for real estate its a little different, you must add a named beneficary to your deed, which is done by utilizing a Life Estate Deed, the property can be passed several generations using this method. The key to avoiding probate is having named beneficiaries on all of your assets, that is the case for life insurance as well. A some what common error on life insurance is naming the insureds estate as the contingent beneficiary doing so will place the proceeds from that policy into probate."

I think it's important to weigh assets in planning an estate. Obviously having an inter vivos trust written for an estate that has 200,000K in assets is probably ill-advised. The big myth about trusts is that they avoid probate. Almost every estate out there has something that hasn't been added to the trust, and the estate has to go to probate for that item to "pour over" into the trust.

Another point to emphasis is what probate fees will be versus what a trust costs. An estate in Maryland of $2,000,000 to $5,000,000 would have a probate fee of $2,500, with anything over $5,000,000 being $2,500 plus .02% of the amount exceeding $5,000,000. Additionally trust still have to pay Maryland Estate taxes, as well as Federal estate taxes if they qualify.

An advantage of a living trust is keeping finances out of public record. However if money is left to collaterals, inheritance taxes will still be assessed. Also MET and the Fed's still expect you to provide itemized details of assets. Another advantage is having a legacy left to provide for others and to control asset management for them, such as special needs children.

More needs to be done to explain these myths and help people decide what they really accomplish with a trust. I know it sounds fancy to say you have a Trust, however if you paid $5,000 in 2008 to avoid $500 in probate fees in 2048, I don't think you're the one winning in the long run.

Maryland Probate Fee Schedule

Gcbeehler (talk) 02:32, 29 October 2008 (UTC)

Joint Accounts, Joint Property

Joint accounts/property aren't the cure all of avoiding probate. A significant gamble is being made. Adding someone's name to your account as an equal, aside from exposing you to them emptying the account, put you at risk on paying taxes on your own money.

Consider this, which is a fairly typical scenario for a shared checking account between two collaterals (taxables).

Person A (Tim) has a checking account with $100,000 in it, Tim's best friend is Greg. Tim adds Greg as a joint owner with rights of survivorship to the account expecting that he will die before Greg does. All $100,000 was contributed by Tim, and not a penny was added by Greg. Greg unexpectedly dies before Tim. It plays out like so:

The account is assumed to be owned by both people in equal shares. So $50,000 is Greg's and $50,000 is Tim's, however in reality all of the money was Tim's to begin with. Tim will be assessed inheritance tax on Greg's half of $50,000. In Maryland, the collateral inheritance tax is 10%, Tim would pay $5,000 to "inherit" the $50,000. So what was gained by with joint account?

There are other risks involved as well, especially if the asset involving assets that are constantly changing in value. Almost all assets are valued at date of death. So if this account was $100,000 in stock/bonds/real estate when Greg passed away, and like recently the market has slide, Tim still pays tax on the original value of $50,000 regardless of whether it's worth $50,000 in the future. (this goes both ways, if the stocks/bonds/real estate appreciate to $500,000 after date of death, tax is only paid on $50,000).

Gcbeehler (talk) 02:44, 29 October 2008 (UTC)

different meaning?

in looking for videos on probate on youtube, i came across many that have to do with african-american fraternities and sororities. clearly unrelated to this meaning. apparently a ceremony of some sort. initiation? thoughts on a small mention of differentiation in the article?Toyokuni3 (talk) 15:55, 26 June 2016 (UTC)

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Probate Abbreviation

I'm sure this is a minor matter, but @81.108.81.253: pointed out that "pr." isn't exactly often used as an abbreviation for "probate". Nor is the statement wrong. I'm partial to "prob."; I've seen it before in multiple courts, etc. Thoughts? — Javert2113 (talk) 15:38, 6 April 2018 (UTC)

I have tried unsuccessfully to delete this so-called “abbreviation.” I was a practising lawyer in England for 43 years and never saw it used. If the word was abbreviated, for example in an Abstract of Title, it was always “Pbte”, or more usually “Gt of Pbte.” “pr.” could mean anything; a large number of English words begin with those letters, and it is commonly used instead of “pair,” as in e.g. “pr. of socks” or “per pr.” when pricing two items sold together. I’ve never heard of the dictionary of abbreviations quoted, either. Wikipedia please note. — Preceding unsigned comment added by 81.108.81.253 (talk) 16:37, 10 April 2018 (UTC)

I agree that the abbreviation should be removed. If nobody objects, I suggest boldly going ahead and making the change. Arllaw (talk) 19:54, 10 April 2018 (UTC)

@Javert2113, Arllaw, and Wikimandia: I agree with the above, and there have been no objections in over two months. Even if it's not incorrect per se, "pr." isn't an official abbreviation (the source quoted is a general abbreviations dictionary, not a legal textbook) and there are many variants, (e.g., the courts service uses "PA" (their probate form reference is "PA1"). jamacfarlane (talk) 19:30, 26 June 2018 (UTC)

Ah, I'd forgotten about this conversation. Well, nemine contradicente, nemine contradicente, nemine contradicente. I'll change it, then. —Javert2113 (Siarad.|¤) 19:48, 26 June 2018 (UTC)

Whoops, looks like it's been done already. Thanks, everyone! —Javert2113 (Siarad.|¤) 19:49, 26 June 2018 (UTC)

Wrong statement, for real property, and "resided"

The article now says (Sep. 24, 2019): "If the decedent dies without a will, known as intestacy, the estate is distributed according to the laws of the state where the decedent resided." In the USA that is false. Real property (land, easements, servitudes, etc.) is distributed according to the law in force where the land is, not (necessarily) the law "of the state where the the decedent resided," even if a will is probated (proven up) in the decedent's state of domicile. (There is in rem probate jurisdiction for real property.) Furthermore, it is the law at the decedent's legal domicile at death, not the residence, that determines probate jurisdiction and applicable law for personal (non-land, non-real) property. If the decedent was domiciled in state A and owned land in a different state B, then the personal property (money, securities, furniture, etc.) passes by the law of state A, and the real property in state B passes by the law of state B. Usually the estate's executor is required to appoint a separate ancillary administrator in a state B probate court in order to distribute the land there (after paying off any local creditors there of the deceased). See, generally, textbooks about "Conflict of Laws" and the Restatement of Conflict of Laws 2. 2600:1700:2000:E740:1AA:1205:7C67:D0D5 (talk) 07:53, 24 September 2019 (UTC)