Basics and Common Probate Terms

Probate (more properly called estate administration) is the legal process that takes place after someone passes away. The law covers a broad range of processes, including:

• Who will manage the estate?
• Identifying the assets and debts the deceased left behind and determining which ones belong in the probate process.
• How should the value of the estate’s assets, debts, and taxes be calculated?

The law governs how the estate’s property is distributed to creditors, heirs, and beneficiaries based on the instructions the deceased left in his or her will, if there is one.

If your loved one left a will, an executor will administer the estate. If he or she died intestate (without a will), the probate court will appoint an administrator to represent the estate.

Beneficiaries are people and institutions named in the will to receive property. If your loved one did not have a will, the property and assets will be given to heirs — people who, under the law, are eligible to inherit the estate.

Common Probate Terms

We have compiled a list of the most common legal terms used when discussing probate, estate, and trust matters. This list is designed for use as a quick reference to help you make sense of your situation.

Here are the probate terms that you will encounter more frequently:

• Administrator:
  • The person who is appointed by the Probate Court to represent the estate in the case that the deceased did not have a will.

• Beneficiary: 
  • A person who is named in the will to receive property if the deceased had a valid will.

• Creditors:
  • Individuals and companies to whom the deceased owed money at the time of death.

• Estate Administration:
  • The formal legal process of distributing the property of the deceased to beneficiaries, creditors, and heirs.

• Executor:
  • The person named as executor in the will and appointed by the Probate Court to represent the estate.

• Heir:
  • A person who would be eligible to inherit from the deceased under the law if the deceased did not have a will.

• Intestate:
  • An estate where the deceased did not have a valid will; the opposite of testate.

• Nominated Executor:
  • The person that the will names as executor of the estate. That person is not actually the executor until he or she is permitted to qualify by order of the Probate Court and takes an oath.

• Personal Representative:
  • This term generally refers to an executor, administrator, or administrator CTA. A temporary administrator is not a Personal Representative.

• Petitioner:
  • The person who signs and files a petition with the Probate Court requesting the Court to do something, such as open an estate.

• Probate:
  • The formal legal process of proving to the probate court that a document is the legal last will and testament of the deceased. In common terms, probate often refers to distributing the deceased’s property to beneficiaries, creditors, and heirs. That process is more accurately called estate administration.

• Testate:
  • An estate where the deceased had a valid will; the opposite of intestate.

• Probate Lawyer:
  • A probate attorney is a state-licensed lawyer focusing in estate law who provides legal services and assistance to the executors, administrators, and beneficiaries of an estate to settle a deceased person’s affairs.

Basic Overview of the Process

Probate cases can vary widely depending on multiple factors. These factors may include the size and diversity of the estate, the number of heirs and beneficiaries, creditor claims, and whether disputes exist. Every estate, however large or small, will go through the same 3 basic phases: appointment, administration, and distribution.