Probate: Difference between revisions - Wikipedia
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Line 3: {{Use dmy dates|date=February 2021}} {{Wills, trusts, estates}} In [[Common law|common law jurisdictions]], '''probate''' is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of [[intestacy]] in the state of residence of the deceased at time of death in the absence of a legal will. The granting of probate is the first step in the [[legal]] process of administering the [[estate (law)|estate]] of a deceased person, resolving all claims and distributing the deceased person's [[property]] under a will. A [[probate court]] decides the legal validity of a [[testator]]'s (deceased person's) will and grants its approval, also known as granting probate, to the executor. The probated will then becomes a [[legal instrument]] that may be enforced by the executor in the law courts if necessary. A probate also officially appoints the [[executor]] (or [[personal representative]]), generally named in the will, as having legal power to dispose of the testator's assets in the manner specified in the testator's will. However, through the probate process, a will may be [[Will contest|contested]].<ref>{{cite news|last1=Jones|first1=Harvey|title=Dealing with probate in 2013|url=https://www.theguardian.com/money/2013/feb/15/dealing-with-probate-in-2013|access-date=19 September 2017|work=The Guardian|date=15 February 2013}}</ref> Line 28: ==Probate process== {{See also|Administration (probate law)}} Probate is a process of improvement that proves a [[Will (law)|will]] of a deceased person is valid, so their property can in due course be retitled (US terminology) or transferred to beneficiaries of the will. As with any legal proceeding, there are technical aspects to probate administration:<ref name="ukprobate">For the U.K., see, e.g., {{cite web|title=Wills, probate and inheritance|url=https://www.gov.uk/wills-probate-inheritance|website=Gov.UK|access-date=20 September 2017}}, {{cite web|title=Probate|url=http://www.lawsociety.org.uk/for-the-public/common-legal-issues/probate/|website=The Law Society|access-date=20 September 2017}}</ref><ref name="auprobate">For Australia, See, e.g., {{cite web|title=What is Probate?|url=http://www.publictrustee.wa.gov.au/W/what_is_probate.aspx?uid=8745-7100-0334-7099|website=Public Trustee|access-date=20 September 2017|date=8 February 2017}}, {{cite web|title=Probate FAQs|url=http://www.supremecourt.wa.gov.au/P/probate_faqs.aspx|website=Supreme Court of Western Australia|access-date=20 September 2017|date=6 July 2017}}</ref><ref name="caprobate">For Canada, see e.g., {{cite news|last1=Kaufman|first1=Leanne|title=To probate or not to probate|url=http://business.financialpost.com/personal-finance/retirement/inheritance/to-probate-or-not-to-probate|access-date=20 September 2017|work=Financial Post|date=22 February 2013}}, {{cite web|title=Probating an Estate|url=https://www.sasklawcourts.ca/home/court-of-queen-s-bench/wills-and-estates/probating-an-estate|website=Courts of Saskatchewan|access-date=20 September 2017|date=2012}}{{Dead link|date=August 2023 |bot=InternetArchiveBot |fix-attempted=yes }}</ref><ref name="usprobate">For the United States, see e.g., {{cite web |title=When Someone Dies - A Non-Lawyer's Guide to Probate in Washington, DC |url=https://www.lawhelp.org/dc/resource/when-someone-dies-a-non-lawyers-guide-to-probate-in-washington-dc |access-date=20 September 2017 |website=Lawhelp.org |publisher=Council for Court Excellence}}, {{cite web |title=Wills, Estates, and Probate |url=http://www.courts.ca.gov/8865.htm |access-date=20 September 2017 |website=Judicial Branch of California}}</ref> * Creditors must be notified and legal notices published. * Executors of the will must be guided in how and when to distribute assets and how to take creditors' rights into account. Line 61: === Application for grant of probate === Probate is required if the deceased person owned [[real property]] or if his or her other assets are above the threshold amount, which is usually $50,000 for major banks and lower thresholds for other financial institutions. Assets that had been “[[Joint tenancy|owned jointly]]” (but not assets held “[[Tenancy in common|in common]]”) pass automatically to the other joint owner and do not form part of the deceased estate. Also, benefits from life insurance on the deceased paid directly to a nominee Applications for probate are made to the probate office in the jurisdiction with which the deceased has a close connection, not necessarily where the person died. Normally, only the [[executor]] of a will can apply for a grant of probate, and it is their duty to obtain probate in a timely manner. Executors can apply for probate themselves (which is often done to reduce legal fees) or be represented by a lawyer. With the application for probate, the applicant must also provide the original of the will, an official [[death certificate]] (not the one issued by a medical professional), a copy of the [[death notice]] and a statement of the known assets and liabilities of the deceased estate. The applicant may also be required to have published a notice in a major newspaper of an intention to make the application for probate. Line 70: ==Canada== {{See also|Inheritance law in Canada|Segregated_fund#Probate_protection}} Inheritance law in Canada is [[Constitution of Canada|constitutionally]] a [[Canadian federalism|provincial matter]]. Therefore, the laws governing inheritance in Canada is legislated by each individual [[Provinces and territories of Canada|province]]. ===Ontario=== The * The executor applies for a certificate of appointment of estate trustee (probate) from the court, along with the original will and any required supporting documents. * The court reviews the application and if satisfied that the will is valid and that the executor is suitable, it will issue a certificate of appointment of estate trustee. Line 107: ====Contesting the circumstances of a will's creation==== An applicant may challenge the validity of a person's will after they have died by lodging a '''caveat''' and requisite fee at the probate registry. This prevents anyone from obtaining a grant of probate for that person's estate for six months, which the applicant can shortly before that point apply to extend. A caveat is not to be used to extend the time for bringing a claim for financial provision from a person's estate, such as under the [[Inheritance (Provision for Family and Dependants) Act 1975]]. The court can order costs against an applicant using a caveat for that purpose.<ref name="s">{{Cite web|url=http://www.stephensons.co.uk/site/individuals/contesting_wills_probate/caveats_warnings/|title = Caveats, Warnings & Appearances - Inheritance Disputes| date=4 August 2023 }}</ref> To challenge the caveat, the intended executor sends a completed "'''warning'''" form to the probate registry. This document will be sent to the person who entered the caveat, and for the caveat to remain, they will have to enter an '''appearance''' at the probate registry.<ref name="s"/> This is not a physical appearance; it is a further document to send to the probate registry within eight days of receiving the warning.<ref name="s"/> ===Scotland=== The equivalent to probate in Scotland is '''confirmation''', although there are considerable differences between the two systems because of the separate [[Scots law|Scottish legal system]]. Appointment as an executor does not in itself grant authority to ingather and distribute the estate of the deceased; the executor(s) must make an application to the [[sheriff court]] for a grant of confirmation. This is a [[court order]] authorising them to "uplift, receive, administer and dispose of the estate and to act in the office of executor".<ref>{{cite book|last1=Gloag and Henderson|title=The Law of Scotland|date=2017|publisher=W. Green|pages=1130|edition=14th}}</ref> A grant or certificate of confirmation gives the executor(s) authority to uplift money or other property belonging to a deceased person (e.g. from a bank), and to administer and distribute it according to either the deceased's will or the law on [[intestacy]].<ref>{{cite web|title=Dealing With a Deceased's Estate in Scotland|url=https://www.scotcourts.gov.uk/taking-action/dealing-with-a-deceased%27s-estate-in-scotland|website=Scottish Courts and Tribunals Service|access-date=19 April 2018}}</ref> ==United States== Line 120: 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 {{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. | |||