Editing Probate (section)

==United States==
{{See also|Uniform Probate Code}}
{{One source|date=October 2007}}
[[File:Attorney meets with client for estate planning.jpg|right|thumb|An attorney meets with client for estate planning.]]
Most estates in the United States include property that is subject to probate proceedings.<ref name="usprobate"/> If the property of an estate is not automatically devised to a surviving spouse or heir through principles of joint ownership or survivorship, or otherwise by [[operation of law]], and was not transferred to a [[Living trust|trust]] during the decedent's lifetime, it is generally necessary to "probate the estate", whether or not the decedent had a valid [[will (law)|will]]. For example, life insurance and retirement accounts with properly completed beneficiary designations should avoid probate, as will most bank accounts titled jointly or made payable on death.<ref>{{cite news |last1=Horn |first1=John |last2=Johnsen-Tracy |first2=Dera |title=Avoid the Top 10 Mistakes Made With Beneficiary Designations |url=https://www.aaii.com/journal/article/avoid-the-top-10-mistakes-made-with-beneficiary-designations |newspaper=AAII: Avoid the Top 10 Mistakes Made with Beneficiary Designations |publisher=American Association of Individual Investors |access-date=6 April 2019}}</ref>

Some states have procedures that allow for the transfer of assets from small estates through affidavit or through a simplified probate process. For example, California has a "Small Estate Summary Procedure" to allow the summary transfer of a decedent's asset without a formal probate proceeding. The dollar limit by which the small estate procedure can be effectuated was $150,000<ref>{{cite web|title=Affidavit for Transfer of Personal Property Worth $150,000 or Less|url=http://www.courts.ca.gov/10440.htm|website=California Courts|access-date=8 June 2017}}</ref> before a statutory increase was implemented on a three-year schedule,<ref>
{{cite web
	| url = https://law.justia.com/codes/california/2022/code-prob/division-2/part-21/section-890/
	| title = CA Prob Code § 890 (2022)
	| last = 
	| first = 
	| date = 2022
	| website = JUSTIA US Law
	| publisher = 
	| access-date = 24 August 2023
	| quote = 
}}
</ref> arriving at $184,500 by April 2022.<ref>
{{cite web
	| url = https://calawyers.org/trusts-and-estates/judicial-council-spr-22-16-rules-and-forms-small-estate-disposition/
	| title = Judicial Council SPR 22-16 — Rules and Forms: Small Estate Disposition
	| last = 
	| first = 
	| date = 28 April 2022
	| website = California Lawyers Association
	| publisher = 
	| access-date = 24 August 2023
	| quote = 
}}
</ref>

For estates that do not qualify for simplified proceedings, a court having jurisdiction of the decedent's estate (a probate court) supervises the probate process to ensure administration and disposition of the decedent's property is conducted in accord with the law of that jurisdiction, and in a manner consistent with decedent's intent as manifested in his will. Distribution of certain estate assets may require selling assets, including real estate.

===Avoiding probate===
Some of the decedent's property may never enter probate because it passes to another person [[contract]]ually, such as the death proceeds of an insurance policy insuring the decedent or bank or retirement account that names a beneficiary or is owned as "payable on death", and property (sometimes a bank or brokerage account) legally held as "jointly owned with right of survivorship".

Property held in a [[Living trust|revocable]] or irrevocable trust created during the grantor's lifetime also avoids probate. In these cases in the U.S. no court action is involved and the property is distributed privately, subject to estate taxes.

The best way to determine which assets are probate assets (requiring administration) is to determine whether each asset passes outside of probate.

In jurisdictions in the U.S. that recognize a married couple's property as [[tenancy by the entireties]], if a spouse (or partner in Hawaii) dies intestate (owning property without a will), the portion of his/her estate so titled passes to a surviving spouse without a probate.

===Steps of probate===

If the decedent dies without a will, known as [[intestacy]], with the exception of real properly located in another [[jurisdiction]],<ref>{{cite journal |last1=Simes |first1=Lewis M. |title=Administration of a Decedent's Estate As a Proceeding in Rem |journal=Michigan Law Review |date=1945 |volume=43 |issue=4 |pages=675–704 |doi=10.2307/1283439 |jstor=1283439 |url=https://heinonline.org/HOL/LandingPage?handle=hein.journals/mlr43&div=42&id=&page= |access-date=24 September 2019|url-access=subscription }}</ref> the estate is distributed according to the laws of the jurisdiction where the decedent [[Domicile (law)|resided]].<ref>{{cite journal |last1=Stern |first1=James Y. |title=Property, Exclusivity, and Jurisdiction |journal=Virginia Law Review |date=2014 |volume=100 |page=111 |url=https://scholarship.law.wm.edu/facpubs/1671 |access-date=24 September 2019}}</ref>

If the decedent died with a will, the will usually names an [[executor]] (personal representative), who carries out the instructions laid out in the will. The executor marshals the decedent's assets. If there is no will, or if the will does not name an executor, the probate court can appoint one. Traditionally, the representative of an [[wikt:testate|intestate]] estate is called an ''administrator''. If the decedent died with a will, but only a copy of the will can be located, many states allow the copy to be probated, subject to the rebuttable presumption that the testator destroyed the will before death.

In some cases, where the person named as executor cannot administer the probate, or wishes to have someone else do so, another person is named administrator. An executor or an administrator may receive compensation for his service. Additionally, beneficiaries of an estate may be able to remove the appointed executor if he or she is not capable of properly fulfilling his or her duties.

The representative of a testate estate who is someone other than the executor named in the will is an ''administrator with the will annexed'', or administrator c.t.a. (from the Latin ''cum testamento annexo''.) The generic term for executors or administrators is [[personal representative]].{{citation needed|date=September 2017}}

The probate court may require that the executor provide a [[fidelity bond]], an insurance policy in favor of the estate to protect against possible abuse by the executor.<ref>{{cite web|last1=O'Neill|first1=Kevin|title=Probate|url=http://www.co.warren.nj.us/surrogate/probate.html|website=Office of the Surrogate|publisher=Warren County, New Jersey|access-date=19 September 2017}}</ref>

After opening the probate case with the court, the personal representative inventories and collects the decedent's property. Next, he pays any debts and taxes, including [[estate tax in the United States]], if the estate is taxable at the federal or state level. Finally, he distributes the remaining property to the beneficiaries, either as instructed in the will, or under the [[intestacy]] laws of the state.

A party may challenge any aspect of the probate administration, such as a direct challenge to the validity of the will, known as a [[will contest]], a challenge to the status of the person serving as personal representative, a challenge as to the identity of the heirs, and a challenge to whether the personal representative is properly administering the estate. Issues of [[Paternity (law)|paternity]] can be disputed among the potential heirs in intestate estates, especially with the advent of inexpensive [[DNA profiling]] techniques. In some situations, however, even biological heirs can be denied their inheritance rights, while non-biological heirs can be granted inheritance rights.<ref>{{cite news|last1=Dobbin|first1=Ben|title=Woman Denied Jell-O Fortune|url=https://abcnews.go.com/Business/story?id=4447436|access-date=19 September 2017|agency=Associated Press|publisher=ABC News|date=13 March 2008}}</ref>

The personal representative must understand and abide by the fiduciary duties, such as a duty to keep money in interest bearing account and to treat all beneficiaries equally. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.