Probate is the process by which property is transferred from a deceased person to a living person or entity. The name of the particular action is based on the practice of the old English courts beginning every order or finding with the Latin term Probatum (proved) and then carrying on in Latin about the what and why of the findings. I am pretty glad I didn’t have to learn Latin to be a lawyer. Here is an example
Probatum Londini fuit huiusmodi testamentum corum venerabili viro Will’mo King legum doctore surrogato venerabilis et ……… viri domini Richardi Raines militis legum etiam doctoris Curia Prerogativa Cantuariensis magistri custodis sive comisarii legitime constitute quinto die mensis ffebruarii Anno Domini (stilo Anglia) millesimo sexcentesimo nonagesimo quinto juramento Margareta Boevey relicta dicti defuncti et executrix in dicte testamento nominata cui comissa fuit administratio omnium et singulorum bonorum jurium et ………… dicti defuncti de bene et fideliter administrando eadem ad ………. Dei Evangel jurat….
Google translate says, with some contextual assistance by your humble blogger, that means that the will of the deceased, in this case James Bovey, was proved before Will’mo King, Court Surrogate (Magistrate today) by Richard Raines, a soldier of the law (I may change the title on my business cards) in the Prerogative Court in Canterbury (a specialty court), etc.
So we have established that probate derives from the practice of proving a will. And that is still the case today. A lawsuit is filed with the court and then a soldier of the law has to present to the judge the will of the deceased or even the fact that the deceased didn’t have a will that soldier seeks an order that first appoints someone to execute the will, now more commonly referred to as the personal representative.
During the process of the case, all interested parties, close relatives and named heirs, need to be directly notified and the public needs to be generally notified. Anyone who may have an objection to the validity of the will, or wants to contest the appointment of the personal representative, or wants to make a claim against the deceased’s estate can do so with the judge as well.
After everything has been presented to and heard by the court an order similar to the one above is issued (fortunately for us in English) and the process can begin to liquidate and pass on the property of the deceased and pay the just debts.
As you may imagine this can take some time. And until there is an order from the court, there are expenses that need to be taken care of, such as funeral costs, medical bills, utilities, house payments, and so forth. If there is any dispute between parties, that time is of course extended.
The person who is nominated, or desires to become in the case of no will, the personal representative usually has to front those costs, even the cost of filing the probate. So it is in their interest to get it done as quickly and efficiently as possible. Any guesses on the most efficient way to get the probate order from the court?
If you said hiring a humble soldier of the law to make it happen, you are absolutely correct. Probate filings are part of the services I offer under estate planning. I do everything I can to make the process as quick and easy as it can be. In future weeks I will discuss with you ways to avoid probate, but if the time to avoid is past and you are facing the need now, let me know.