When a person dies, their last will and testament (assuming they prepared on in advance) is handled and their wishes for the distribution of their personal property implemented through a process called probate. Probate simply means the procedure by which their last written directives are legally certified as the final statement of their wishes regarding their worldly possessions (including any property or properties they may have owned). It also confirms the appointment of a person or entity the deceased person selected to administer their estate. The term probate is also frequently used to refer to the entire process of “probating” an estate. In this usage, it refers to the entire process that gathers all available assets, pays any outstanding debts, taxes, administrative expenses and then finally makes the specified distribution of remaining assets to those persons or entities designated by the will.
The personal representative (also known as the executor or executrix) who is named in the will is legally in charge of this process and is responsible for handling the orderly method for administration of the estate as set forth by the probate laws and procedures of their state. The executor is typically held accountable for their actions and decisions by the heirs and other beneficiaries and in some cases may be formally supervised by a probate court. If a will does not exist or a personal representative is not designated in the will, the court will appoint one (assuming there is personal property to distribute).
The personal representative is often entitled by law to a reasonable fee or commission for their services.
Probate law generally encourages or provides for partial distributions of funds during the period of administration and assets are often distributed “in kind” rather than sold during this period. Tax laws generally look to the personal representative as being responsible for making death tax filings and other tax payments from the outstanding assets of the deceased. Therefore, choosing an executor/executrix/personal representative is an important decision.
The basic job of administration and accounting for assets must be done whether the estate is handled by a personal representative as part of the probate process or if probate is avoided. In the recent past, lawyers and other professionals have advocated the use of probate avoidance techniques (such as revocable trusts, etc.) in states where the probate process has been seen to be too slow and overly expensive. In recent years, many states have simplified or streamlined their probate processes and, in such states, there is now less reason to employ probate avoidance techniques.