Probate - United States

United States

In any jurisdictions in the U.S. that recognize a married couple's property as tenancy by the entireties, if a person dies intestate (owning property without a will), the portion of his/her estate so titled passes to a surviving spouse without a probate.

If the estate is not automatically devised to the surviving spouse in this manner or through a joint tenancy, and is not held within a trust, it is necessary to "probate the estate", whether or not the decedent had a valid will. A court having jurisdiction of the decedent's estate (a probate court) supervises probate, to administer the disposition of the decedent's property according to the law of the jurisdiction and the decedent's intent as manifested in his testamentary instrument. Dispose of certain estate assets requires selling illiquid assets, including real estate. There are exceptions for smaller estates. If the decedent died without a will, known as intestacy, the estate is distributed according to the laws of the state where the decedent resided, or as held by the court. If the decedent died with a will, the will usually names an executor (personal representative), who carries out the instructions laid out in the will. The executor marshals the decedent's assets. If there is no will, or if the will does not name an executor, the probate court can appoint one. Traditionally, the representative of an intestate estate is called an administrator. If the decedent died with a will, but only a copy of the will can be located, many states allow the copy to be probated, subject to the rebuttable presumption that the testator destroyed the will before death.

In some cases, where the person named as executor cannot administer the probate, or wishes to have someone else do so, another person is named administrator. An executor or an administrator may receive compensation for his service.

The probate court may require that the executor provide a fidelity bond, an insurance policy in favor of the estate to protect against possible abuse by the executor.

The representative of a testate estate who is someone other than the executor named in the will is an administrator with the will annexed, or administrator c.t.a. (from the Latin cum testamento annexo.) The generic term for executors or administrators is personal representative.