Probate

Definition

Probate is the name of the court that has jurisdiction over probate matters and administration. The names of these courts vary from state to state. In Florida there is a separate clerk in every county called the Probate Clerk. In some counties where there are a sufficient number of judges, there is even a Probate Judge who handles nothing but probate matters. In other counties, a Circuit Court Judge who handles criminal matters, civil matters and domestic matters will also handle probate matters. Typically, the Probate Clerk of the court is responsible for probate matters and handles the administration of the probate estates.

Most estates pass through probate court uneventfully - that is, without litigation or other major problems. Only a small percentage of the files opened in probate court actually need the intervention of a probate judge or any significant hearings where actual testimony is taken.

Meaning of Probate
The term "probate" has more than one meaning. Technically, probate means to prove the validity of a Will in court, a process which can take a short time if no one contests its validity. However, probate is commonly used in a much broader sense to describe the process of passing title to property to a successor after the owner's death. The technical term for this administrative court process, which can be very lengthy, is "administration." In the administration process, a decedent's assets are inventoried and creditors are identified and paid. There are a host of other administrative procedures which ensure that the estate's lawyer, executor and various taxing authorities will be paid before the balance of the estate is distributed to the rightful heirs. Although probate and administration are, strictly speaking, two different processes, the term "probate" is used to mean both probate and administration. Even lawyers and judges use the term in this manner. Probate has been described as "our court-operated system for transferring wealth at death."
Guardianship in Probate
In addition to probate and administration, probate courts usually have jurisdiction over the guardianship of minors and mentally incompetent adults. Guardianships, because they are under the jurisdiction of the probate courts, are often referred to as "living probates." This element of probate, the living guardianship, is becoming more prevalent and in some areas clogging probate court systems. This is a totally unnecessary event that should occur in only the most unusual circumstances. Estate planning documents are available to avoid this living probate process. A Durable Family Power of Attorney and a Living Trust are two such documents that avoid the living probate. And, if another argument for proper estate planning is needed, the increase in the number of cases of Alzheimer's disease, the fourth leading cause of death in the United S tates, is leaving more people mentally incompetent. As a result, the courts are handling more and more requests for guardianship. The use of a Living Trust or Durable Power of Attorney allows distressed family members to avoid guardianship or living probate completely.
Is Probate Obsolute?
In many ways the probate process is obsolete. Probate was, and still is, a very slow and cumbersome process. It is the product of common law arising during a time when communication and distances posed great problems in the administration of an estate. In years past, it took three or four months to get word from one end of the country to the other that an estate was open. Potential creditors and heirs needed this time to make the proper claims when an estate was open. In the 18th and early 19th centuries, the length of time required to probate an estate made common sense.

Today, however, we can communicate in writing or orally with virtually anyone on this earth in a matter of seconds via telephone or a facsimile machine. Information moves quickly. Communication with friends, relatives or business associates can be established anywhere in the world within seconds and, in many instances, financial decisions can be made within hours. Times have changed but our probate system has not. It is still fifty to a hundred years behind the present-day era of lightening-fast communications. The present length of time required for probate in the United States varies from nine to twenty-four months, with the average being nineteen months. Contrast this with the average time for probate in the United Kingdom, which is currently three months. There is no justifiable reason for this extraordinary delay and disparity.

Although the average probate takes nineteen months, there are many instances where cases have dragged on for years. There is no need or reason for the vast majority of estates to be in probate. The only reason they end up in probate is because the decedent did not have the foresight or desire to avoid probate. Usually, the decedent elects to do nothing, leaving the heirs and family members to suffer through the probate process. Frequently, the decedent was ignorant concerning ways to avoid probate.
Probate Court as a Safety-Net
It should be noted that probate will always be available as a safety-net if the Trust or other estate planning instruments fail for one reason or another. The probate court is a place of last resort; it will be there to supervise and resolve any disputes. It should not be where your estate goes initially.