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Estate Probate Law

Estate Planners | Tuesday, September 21st, 2010

Estate probate law deals with the property that a person has accumulated at the time of his or her death. The estate is the net worth of a person when he or she dies. If a person has more assets than liabilities, he has an estate. If he has more liabilities than assets, he does not have any estate because his creditors are entitled to his property to pay the debts that he owes. For example, if James has a house worth $100,000 but still owes $30,000 on his mortgage, then his net worth is $70,000. However, if he has a checking account with a $3,000 balance and credit card debt of $4,000, with no other property, then he has a net liability of $1,000 and therefore no property that can be left to heirs since the credit card company is entitled to payment of his debt.

The main objective of estate probate law is finalizing a deceased person’s estate through the probate process. Estate probate law governs the final disposition and settlement of an estate by the executor or administrator.


Estate probate law centers on the will. A will is a document written by a living person describing which person or organization he wants to receive his property after his death. In a will, all property can be bequeathed to one person or organization or divided among more than one person or organization. The will can distribute the property in any manner, but if the will is challenged in court it may be overturned and distributed in a different manner than the will says. Proper estate planning can prevent any challenges from succeeding.

There are several terms to learn in estate probate law. A testator is a male who has written a will, and the feminine is testatrix. If a person dies with a will, he or she is said to have died testate. Without a will, he or she is said to have died intestate. An executor, or executrix, is the person named in the will to carry out the directions in the will, such as distributing the property and paying debts. If the will names no executor, the court will appoint an administrator, or administratrix, to carry out the same function as the executor. The difference between executors and administrators is that executors are named in a person’s will while administrators are appointed by the court if the will names no executor. They both perform the same functions.

In order to make a valid will which will be recognized and upheld by a court of law against any challenges, the maker of the will must have testamentary capacity. Testamentary capacity involves the following three elements:

  1. Age
  2. Mental Capacity
  3. Sound and Disposing Mind


Under estate probate law, the testator must be a certain age in order to write a will that a court will deem valid. The age in most jurisdictions is usually eighteen or twenty-one.

Mental Capacity

Estate probate law requires that the testator must understand that he is making important decisions about how his property will be disposed of after he dies and comprehend the consequences of the provisions of his will. Therefore, those who are insane or otherwise mentally deficient will most likely be deemed to lack the mental capacity to execute a will.

Sound and Disposing Mind

Estate probate law defines a sound and disposing mind as being in a lucid frame of mind when writing a will. Most people who are not insane or mentally deficient meet this requirement. However, this also applies to those whose minds vacillate between sound and unsound. For example, an alcoholic has times when he is sober, so if he writes a will when he is sober then he has a written it in the state of a sound and disposing mind, even though he has periods of drunkenness after writing the will.

Elements of a Will

For a will to be valid and recognized by a court of law, there are several requirements in estate probate law that a court will look at to determine if the will is valid. First, the will must be written, although there is an exception for nuncupative wills which are discussed later in this article. Wills are usually written on paper but courts have found valid wills written on walls, on book covers, or other odd surfaces. In the will, the testator must state his name and say that this will is his last will and testament, which revokes any wills written previously. There must also be a statement that the testator is of sound mind and body to write a will to understand the implications and consequences of his actions. The will must also be signed by the testator and usually signed by witnesses who watch the testator sign his name to his will.

Types of Wills

1. Holographic Wills

A holographic will is a will without witnesses. It has only the testator’s signature. The recognition of holographic wills varies among jurisdictions, but most have procedures to establish the validity of a holographic will. However, it does delay the probate process and therefore costs more for the estate than if there were witnesses to the will.

2. Oral/Nuncupative Will

An oral, or nuncupative, will is not a written document but rather bequests made on the deathbed of the testator. These apply only to personal property like jewelry, china, or clothing and not to real property like houses or land. Again, whether a jurisdiction will recognize an oral will varies.

3. Joint Will

A joint will is written by more than one person. This type of will is typically used by married couples since they possess joint property. Instead of each spouse writing a separate will, both spouses write one will together.

4. Living Will

A living will relates to a person’s medical wishes if he or she is ever unconscious or incapacitated. These wills differ from other types because they take effect before the death of the testator. In a living will, the testator describes the medical treatment he wants to receive in certain circumstances, such as the conditions under which he wants to be kept alive via life support systems.

5. Mariner or Member of Armed Forces Will

Estate probate law governing the wills of a member of the armed forces or mariners are often not as stringent as estate probate law for civilians. This is because soldiers or mariners may be in extreme situations outside of the country that civilians do not encounter.

6. Codicil

Codicils are additions to an existing will. Codicils may modify a portion of an existing will, or they may merely state a new provision to the will that was not in the original document. Codicils simplify will revisions by preventing an entirely new will from having to be drafted. For example, if the testator has a child after writing his original will, he can add a codicil to the original will that provides for the child.

Revoking a Will

Estate probate law also covers revoking a will. There are several ways to revoke a will. One is to write a new will and state in the new will that all previous wills are revoked. The will can also be revoked by physically destruction, such as by shredding. Also, the testator can mark out part of the will. Another option is to make a codicil which strikes down parts of the will.

Probate of a Will

In estate probate law, the probate process begins by presenting the testator’s will in court and follows all the rules of closing a person’s estate until all steps have been accomplished so the court can close the estate.

First, the will must be presented to the court and shown to be valid. Then, the executor named in the will, or the administrator appointed by the court if no such executor is named, can begin his or her duties of taking inventory of the property, issuing the notice to creditors, paying any debts, preparing tax returns and other documents, and disposing of the property in accordance with the directions of the will. These duties can take a long time to complete. After the executor finishes all these duties, he or she goes before the court and provides the required documents indicating that the provisions of the will have been carried out, and the court will issue its final decree, thereby closing the estate.

This may sound simple enough, but probate can be quite complicated. Wills can be challenged, so some estates can be tied up for years of court wrangling. However, if proper estate planning has occurred ahead of time, the probate process can be made easier for the estate’s heirs.

Intestate Succession

Dying without a will is termed dying intestate in legal language. When a person dies intestate, he leaves no answers as to how and to whom he wants his property disposed and distributed, so the estate probate laws of intestate succession determine the answers to these questions. The main rule that usually applies is that if one spouse dies and the other is still living, the spouse will receive the deceased spouse’s property. If there are children, they will receive a share as well. Children that were adopted are treated the same way as natural children in the eyes of the court.

Intestate succession can become very complicated depending on the number of potential heirs, whether any spouse or children have preceded the deceased in death, or whether any children have died and left grandchildren. However, this problem can be remedied by planning the estate ahead of time and having a will which lays out the deceased’s final wishes.

Contesting a Will

Any person may contest a will as not representing the true wishes of the testator. There are four major reasons a will can be contested.

1. Testamentary Capacity

Testamentary capacity is the ability of the testator to write a valid will and understand the consequences of the provisions set forth in the will. Challenging a will on testamentary capacity grounds is usually based on a claim of insanity or other mental deficiency on the part of the testator. However, the testamentary capacity of an adult under estate probate law is very hard to challenge.

2. Undue Influence

Undue influence occurs when someone with a position of power over the testator influences the testator about the provisions of his will. As a result, this other person is enriched by the influence he wields over the testator, which usually includes convincing the testator to leave some or all of his property to him or her. If not for the advice of this other person, the testator would not have made these provisions in the will. For example, the attorney drafting the testator’s will convinces the testator to leave the attorney his stock portfolio instead of leaving it to his wife. The attorney influenced the testator to make a decision contrary to the testator’s true wishes because the testator trusted the attorney and the attorney’s position as advisor on his will.

3. Insane Delusion

Insane delusion occurs when the testator acts contrary to what reason would otherwise dictate. For example, suppose the testator raised two children who are still living, but in his will claims that he has no children so he is leaving his estate to his pet dog Sport. The testator is clearly suffering from a delusion about the existence of his children.

4. Fraud

Fraud occurs when some person influences the testator to leave money or property to a third party. For example, the testator’s attorney conspires with distant cousins of the testator and advises the testator to leave his entire estate to these cousins instead of to his wife. If the testator had not relied on his attorney’s advice, the testator would have left everything to his wife, not to his distant cousins. As a result of the collusion between the attorney and the cousins, the cousins are enriched unjustly.

Estate probate law encompasses a large body of rules that have evolved over time and continue to develop. However, these basic rules are generally recognized in most jurisdictions. As always, consult a licensed estate probate law attorney about your specific case to ensure that your estate will proceed through the probate process as smoothly as possible for your heirs.

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