FAQs

1 What Is the Difference Between Probate and Administration?

Historically, the term probate referred to the process of proving the validity of a will. Nowadays it refers to not only proving the will, but also to the process of settling a decedent’s estate. Administration of an estate refers to the settlement of the estate of a decedent who did not leave a will. The terms probate, administration, and estate administrations are often used interchangeably to describe the process of settling the estate of a decedent.

2. What Is a Personal Representative?

A personal representative is a fiduciary appointed by the court to perform the day-to-day activities of settling the estate of a decedent. The main responsibilities of the personal representative include inventorying the estate, paying estate debt, and distributing estate assets. The probate court oversees the activities of the personal representative.

3. What Is the Difference between an Executor and an Estate Administrator?

Both the term “executor” and the term “estate administrator” refer to the personal representative appointed by the court to settle the estate of a decedent. Generally, the term “executor” refers to a personal representative who was nominated by a testator in their will, while “administrator” and “estate administrator” are terms used when the personal representative was not the person named in a will.

4. What Is a Testator?

A testator is someone who makes a will. Each state has requirements related to who is eligible to make a will. For example, states have minimum age requirements and the requirement that the person have the requisite mental capacity.

5. What Is the Difference between a Testate Estate and an Intestate Estate?

If the decedent left a valid will, the estate is testate. If the decedent did not leave a valid will, the estate is intestate. If an estate is intestate, assets are distributed based on state intestate succession rules which require that the decedent’s legal heirs or next-of-kin inherit.

6. What Is a Fiduciary?

A fiduciary is someone empowered to act on behalf of another person in circumstances that requires the utmost honesty, trust, and loyalty. With respect to an estate and its beneficiaries and heirs, fiduciaries may include the personal representative, guardian, trustee, or attorney. Fiduciaries have a legal obligation to provide the highest standard of care and to act in a trustworthy and honest manner.

7. What Are “Letters”?

When a probate court appoints someone to serve as personal representative, the court issues that person an order called “letters.” The document gives the person named therein legal authority to act on behalf of the estate. The personal representative may be required to produce the letters in order to perform certain actions on behalf of the estate such as accessing the decedent’s financial accounts or opening up a bank account on behalf of the estate.

If the personal representative was nominated in the decedent’s will, the order is typically called, “letters testamentary.” If the decedent did not have a will or if someone other than the person nominated in the will is appointed, the order is typically called, “letters of administration.”

8. What Is the Difference between a Beneficiary and an Heir?

A beneficiary is a person or entity that receives assets from a will while an heir is a person who receives assets from an intestate estate.

9. What Is an Estate?

An estate is the property owned by a person less the debt that they owe.

10. What Is the Difference between Probate Property and Nonprobate Property?

Probate assets are property in a decedent’s estate that can be transferred by will or through intestacy. Generally, it includes assets owned individually by the decedent as well as the decedent’s interest in property owned with others as tenants in common. Nonprobate property includes property that by operation of law or by contract goes to others upon the death of the decedent outside of the probate process. Examples of nonprobate property include property owned by the decedent with another person or persons as joint tenants with survivorship rights, joint bank accounts, assets in revocable living trusts, assets with designated beneficiaries such as 401(k) accounts, IRAs, annuities, and life insurance.