Estate Planning Law – Probate 101
The probate procedure is what happens when a person dies with a will. It is literally the process by which the court approves a will, formally appoints an executor or executrix, issues testamentary letters that allows the executor or executrix to act on behalf of the estate pursuant to the will. The person named as executor must propound the will, which means they have to petition the surrogate’s court, and they have to go to court and show that the will was properly done, that it was executed correctly, that the testator or the deceased person had the proper capacity to make the will at the time that they did, and they also have to obtain jurisdiction over any interested parties, which means anyone that would have taken under intestacy has to be named as a party, and they have to be put on notice that the executor is going to court to propound this will.
Now this becomes important where somebody may have been disinherited in certain circumstances, or if you have relatives that kind of fell out of touch, because you have to make sure that you follow all the procedures because you have to have the authority to act. Without being granted that authority to act by the court, you can’t marshal assets, you can’t pay any debts, and you can’t do anything. So it’s really the first thing that you have to do. Even if no objections are filed, so if everybody’s on board with the executor acting on behalf of the estate, if everyone agrees that this person should be given that authority, the court still has to be satisfied that everything was done properly and that you have that authority. So the formal procedure of going to court and petitioning – that’s what probate procedure is.