What Is Probate?

Posted on April 13, 2014 at 8:50 PM

The term “probate” refers to two separate, but often related, concepts.  The first meaning of “probate” is the process of submitting a will to the court in order to obtain an order that the will is valid as to form and witness requirements.  To be legally enforceable, all wills must be submitted to a court and determined to be valid.  In most Indiana counties, obtaining an order that a will is valid (probating the will) is often done in a judge’s or a court commissioner’s office, not a courtroom.  It is very informal, usually takes only a few minutes, and costs less than $250.00 in court filing fees and charges to publish a notice to creditors and other interested parties that a personal representative has been appointed to administer the estate.

The second meaning of “probate” is the process of court supervision of the administration of an estate.  Court supervision of an estate can occur even if a decedent does not leave a will.  If a person dies with property in his or her name alone which is valued at more than $50,000.00 and which is not otherwise disposed of, the decedent’s estate may be subject to court supervision. Court supervision is designed to provide protection to beneficiaries and creditors, by assuring that the personal representative who is appointed to administer an estate is properly performing all of his or her duties.  Thus, under a court-supervised estate the personal representative is required to file with the court an inventory of all assets and an accounting showing all receipts, expenditures, and distributions.  The personal representative is also required to obtain court approval and orders before taking certain actions, such as selling real estate.  There is certainly a place for, and there are benefits from, court supervision in some cases.  However, court supervision requires more work, can result in higher administration costs, and can extend the time that an estate remains open.  In many cases the drawbacks of court supervision of an estate (the second meaning of “probate") will outweigh the benefits.  Fortunately, there are ways to avoid court supervision of an estate.  I will discuss ways of avoiding probate in the second sense (court supervision of an estate) in another post.

For more on "probate" and its pros and cons, check this out:

Categories: Estate Administration, Probate And Avoiding Probate