by Joseph Nicholson

Created on: December 23, 2008   Last Updated: April 09, 2011

The question of responsibility for probate can be answered on several levels. First, since probate is governed by state laws, with wide variation between different states, it can be said that legislatures are ultimately responsible for handling the rules of probate. But no individual's estate is settled by a legislator; that's the work of a probate court and the presiding judge, so on another level they're the ones responsible.

Of course, a probate case doesn't even begin unless a beneficiary or creditor of the estate initiates the proceedings so it may be they who are responsible for handling probate. But don't forget the probate court establishes an executor or personal representative to administer the estate, making them, in a way, legally responsible for handling probate. Finally, anyone who's ever lost valuable time or assets to the slow workings of a probate court can blame the decedent for not taking steps to keep their estate out of probate - they should have been more responsible in handling it!

The real answer, of course, is that no one person is responsible for probate. For dealing with sensitive issues surrounding the property of a recently deceased person it may be appropriate that so many members of the community have an input into the process. Some will want the supervision of the court to ensure that distribution of assets is done fairly. Others will resent the invasion of privacy.

Probate is necessary for anyone making a claim to receive assets of an estate. By transferring property to trusts or other individuals, probate can be avoided altogether if there are little to no assets in the decedent's name. But, if there are assets, probate will continue whether there's a will or not. Anyone with an interest in the estate can bring a claim or file a will for consideration. The court will examine the document and accept public comments. If there are no overriding protests, the will is accepted by the court and the assets are eventually distributed accordingly. If no will is present, the estate will be divided according to the laws of intestate succession for the state.

After the judge, and the surviving will of a decedent, the person with the most responsibility in an individual probate case is the executor or personal representative. If none is named by the decedent, the court will appoint a willing and able relative or friend, or appoint a professional. The personal representative has more responsibility than outright power, since their role is largely proscribed by the will itself or the probate laws. Still, the decisions of the personal representative or executor will carry more weight with the court during most of the probate proceedings. At any time, a beneficiary can move the court to have the executor removed, but they bear the heavy burden of proving malfeasance. At the very end of the probate proceeding, the personal representative must file a full accounting of the estate's assets and how they were administered. Anyone with an interest in the estate, either a beneficiary or creditor has one last chance to make a complaint before the case is discharged.

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