When a person dies, the primary question that's asked is: "Who gets their stuff?" If the person had a proper estate plan (and executed it properly), the answer is relatively simple; their family simply looks at their estate planning documents to make that determination. However, if the person dies without an estate plan, or if the person has a will, their family must open a probate action.

Probate is the court-based process for settling a person's estate. The purpose of probate is three-fold: (1) it is used to ensure the validity of wills; (2) it helps to determine who receives the benefit of a person's estate when that person dies without an estate plan; and (3) it is a system for repaying creditors after death. Let's look at each of these purposes individually.

Validating Wills

Contrary to popular belief, wills must go through probate. The tradition of will-making dates back all the way to the Roman Republic. In those days, when a person created a will, it was read aloud before seven witnesses. Over centuries, the tradition of will-making evolved into our modern tradition (which has its roots in England), which requires two witnesses to sign the will in front of each other and the testator.

In the United States (and in the Anglo-America tradition more broadly), we place a lot of importance on property rights. Because wills are essentially documents granting property rights to individuals, we must ensure that the will was properly executed. And the primary way that we do this is by submitting the will before a court of law. Once the court determines that the will was properly executed, then the beneficiaries under the will may take the testator's property.

Of course, there may be instances where certain beneficiaries or people who were left out of the will attempt to contest the validity of the will. In this scenario, the probate court acts as the venue for navigating will contests and other claims. If there are issues with the will, or if a beneficiary can prove that the will was not valid in the first place, then the court may throw the will out and require the decedent's estate to be distributed as if the decedent died intestate. Moreover, if a will is not presented to the probate court within the time allotted by state statute, then the will may be thrown out and, again, the estate be distributed as if the person died with no estate plan in the first place.

This brings us to the second purpose for probate.

Intestacy

Intestacy is a fancy word for dying without an estate plan. It comes from the Latin word intestatus, which literally means, "dying without a will."

When a person dies intestate, state statute dictates who receives the benefit of their estate. These statutes are called statutes of descent and distribution. Each state differs in its approach, so it is important to take a close look at your state to see how it deals with dying intestate. Luckily, GoGo Estate has helpful state-specific articles for you to check out on descent and distribution.

Generally speaking, though, the primary focus is to determine who the decedent's living heirs were at the time of death, as well as how much the decedent's estate was worth on the day of death. Once this determination is made, a probate matter can be opened in the state. Be careful, however, because there may be time limits imposed by each state on bringing a probate matter for intestate estates.

And speaking of time limits...

Creditor Claims

If a decedent dies with outstanding debts, creditors must be provided notice to be able to recoup their money. By law, the clerk of the probate court must publish notice in newspapers after probate is opened in order to give creditors a chance to make a claim against the decedent's estate (meaning filing notice that a debt is owed by the decedent's estate).

States vary on how long creditors have to file claims. But, generally speaking, if a creditor fails to file notice of a claim within the allotted statutory time, then the creditor is barred from making a claim for recovery.

If, however, the creditor files a proper claim, then the creditor will be paid before any of the beneficiaries to the decedent's estate. So, for example, if the decedent died with $20,000 in credit card debt, and had an estate worth $100,000, the credit card company could file a claim against the estate, be repaid the $20,000 it is owed, and the beneficiaries would receive the remaining $80,000.

Conclusion

The administration of probate differs from state to state. However, the general concepts found within the same across the board. To learn more about how your state handles probate matters, check out GoGo Estate's helpful state-specific articles on probate.