What is probate?

By Roger Ellison, CFP

Probate is the act or process of “proving” a will. It is a central part of, and is often a term commonly used for, the process of estate administration. In a later article, estate administration will be discussed; however, in this article, discussion will be focused more narrowly on probate itself. Very simply described, probate involves:

• Depositing the will with the probate court in the county where the person who passed away resided. This begins the process of showing the court that the will presented is in fact the last will and testament of the person who passed away.
• Providing evidence to the court that shows that the person who passed away is in fact deceased.
• Having the signature of the deceased, which is on the will, verified. Most of the time this is done at the time of signing the will by including a self-proving document that is a part of the will. The document is a notarized acknowledgment that the witnesses actually saw the person making the will, with a sound mind, voluntarily sign the will. This very simple process saves time, expense and inconvenience. In the absence of a self-proving document, witnesses will have to be called before the court to attest that the signature is that of the deceased.
• Once the will is validated, the executor is sworn in and formally appointed to carry out the provisions of the will. Some people still use a separate term, executrix, for a female executor. In the absence of an executor, the court will appoint an administrator. The executor, executrix, or the administrator is also referred to as the personal representative.
• Letters testamentary (or letters of administration) are issued which authorize the personal representative to act on behalf of the estate.

To oversimplify, probate involves taking a will to the right court and having the court say, “Yes, this court has jurisdiction, the person has passed away, this is the last will of the person who passed away and this is the signature of the person who made the will.” The will has been “proved.” The court then appoints a representative of the person who passed away to carry out the provisions of the will and provides that representative with documents to show others that it is acting with authority in doing so.

While probate has its advantages and disadvantages, basically it is a very simple and common sense part of carrying out the responsibilities and wishes of a person who passes away. A well-written and up-to-date will, which accurately reflects your wishes and circumstances, can solve, in advance, many of the problems that are often associated with probate. When problems do arise, they are often not really the fault of probate, but of poorly written or out-of-date wills, or squabbling among those affected by the will.

Roger Ellison, Vice President of Planned Giving, at the West Texas Rehabilitation Center Foundation, is a Certified Financial Planner who provides gift and estate planning services on a no cost, no obligation basis. He may be reached at 325-223-6309 or roger@rogerellison.com