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The court process by which awillis proved valid or invalid. The legal process wherein the estate of a decedent is administered.

When a person dies, his or her estate must go through probate, which is a process overseen by a probate court. If the decedent leaves a will directing how his or her property should be distributed after death, the probate court must determine if it should be admitted to probate and given legal effect. If the decedent dies intestate—without leaving a will—the court appoints a personal representative to distribute the decedent's property according to the laws of descent and distribution. These laws direct the distribution of assets based on hereditary succession.

In general, the probate process involves collecting the decedent's assets, liquidating liabilities, paying necessary taxes, and distributing property to heirs. Probate procedures are governed by state law and have been the subject of debate and reform since the 1960s. The uniform probate code (UPC) was first proposed in 1969 by the National Conference of Commissioners on Uniform State Laws and the House of Delegates of the american bar association. The prime focus of the UPC is to simplify the probate process. The UPC, which has been amended numerous times, has been adopted in its entirety by 16 states: Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota, and Utah. The other 36 states have adopted some part of the UPC but still retain distinct procedures.

Probate of a Will

The probate of a will means proving its genuineness in probate court. Unless otherwise provided by statute, a will must be admitted to probate before a court will allow the distribution of a decedent's property to the heirs according to its terms.

As a general rule, a will has no legal effect until it is probated. A will should be probated immediately, and no one has the right to suppress it. The person with possession of a will, usually the personal representative or the decedent's attorney, must produce it. Statutes impose penalties for concealing or destroying a will or for failing to produce it within a specified time.

Probate proceedings are usually held in the state in which the decedent had domicile or permanent residence at the time of death. If, however, the decedent owned real property in a another state, the will disposing of these assets must also be probated in that state.

To qualify as a will in probate, an instrument must be of testamentary character and comply with all statutory requirements. A document is testamentary when it does not take effect until after the death of the person making it and allows the individual to retain the property under personal control during her or his lifetime. A will that has been properly executed by a competent person—the testator—as required by law is entitled to be probated, even if some of its provisions are invalid, obscure, or cannot be implemented.

A will made as a result of fraud or undue influence or a will that has been altered so that all its provisions are revoked will be denied probate. If the alteration only revokes certain provisions of the will, the remaining provisions can be admitted to probate.

All separate papers, instruments, or sheets comprising the most recent of a testator's wills will be admitted to probate. Where a later will does not explicitly revoke all prior wills, two separate and distinct wills can be probated. Probate courts seek to carry out the declared intention of a testator regarding the disposition of property, and they resort to distributing property according to the law of descent and distribution only where no reasonable alternatives exist.

As a general rule, the original document must be presented for probate. Probate of a copy or duplicate of a will is not permitted unless the absence of the original is satisfactorily explained to the court. If a properly proved copy or duplicate of a will that has been lost or destroyed is presented to the court, it may be admitted to probate. Some states have special proceedings to handle such occurrences. A thorough and diligent search for the will is necessary before a copy can be probated as a lost will.

A codicil, which is a supplement to a will, is entitled to be probated together with the will it modifies, if it is properly executed according to statute. If it is complete in itself and can stand as a separate testamentary instrument independent of the will, the codicil alone can be admitted to probate. A codicil that has been subsequently revoked by another codicil is not entitled to probate.

A will made in a foreign language will be admitted to probate if the testator understood what it contained and it otherwise complies with other statutory requirements. A translation usually must accompany the will.


A probate proceeding may involve either formal or informal procedures. Traditionally, probate proceedings were governed by formal procedures that required the probate court to hold hearings and issue orders involving routine matters. Consequently, the legal costs of probating an estate could be substantial. States that have adopted the UPC provisions on probate procedures allow informal probate proceedings that remove the probate court from most stages of the process, with the result that informal probate is cheaper and quicker than formal probate. Most small estates benefit from an informal probate proceeding.

The probate process begins when the personal representative files with the clerk of the probate court a copy of the death certificate along with the will and a petition to admit the will to probate and to grant letters testamentary, which authorize him or her to distribute the estate. Although the personal representative usually files the probate petition, it can be filed by any person who has a pecuniary interest in the will. In states governed by the UPC, the personal representative must elect whether to proceed with formal or informal probate at the time of filing. However, a probate proceeding may be switched from informal to formal during the course of administration, if issues so warrant.

In a formal probate proceeding, a hearing must be held to establish the death of the testator, the residency of the decedent, the genuineness of the will, its conformance with statutory requirements for its execution, and the competency of the testator at the time the will was made. These requirements are usually fulfilled by the attesting witnesses who were present at the time the will was made and who certify that it was properly executed. The number of attesting witnesses is prescribed by law. If fewer than the required number witness a will, it will be declared void, and the testator's property will pass according to the laws of descent and distribution.

When some or all of the witnesses to a will are unavailable, special steps are taken. If the required witnesses have died before the testator, the person offering the will must offer proof of death, in addition to evidence of the genuineness of the signatures and any other proof of execution available. The UPC simplifies witness issues by permitting the admission of "self-authenticating" wills. These wills contain a statement

signed by the witnesses that attests to the competency of the testator and other statutory requirements. Self-authentication relieves the witnesses of the burden of appearing in court and the personal representative of costly procedures if the witnesses are unavailable.

If no one objects to the will at the hearing, it will be admitted to probate.

Informal probate proceedings generally do not require a hearing. The personal representative files the death certificate and will, along with a petition to admit the will under informal probate. The clerk of probate court reviews the submissions and recommends to the court that the will be probated. Once the court issues the order for informal probate, the personal representative files a series of forms that demonstrate that notice has been given to all interested parties about the probate, the decedent's creditors have been paid, and the estate's assets have been collected, appraised, and distributed to the designated heirs.

Contested Probate Proceedings

The probate of a will can be opposed or contested on the ground that the instrument is void because of the testamentary incapacity of the testator at the time the will was made, the failure to comply with the formalities required by law, or any matter sufficient to show the nonexistence of a valid will. When a will is contested, formal proceedings are required.

Will contests are concerned only with external validity, such as failure of due execution, fraud, mistake, undue influence, lack of testamentary capacity, or lack of intent that the instrument be a will. Issues of internal validity, such as violation of the rule against perpetuities, must be raised in proceedings at a later stage of administration. Although a will has been probated as a genuine expression of the testator's intended distribution of property upon her or his death, the estate might be disposed of according to the laws of descent and distribution if the testamentary provisions violate the law.

Only a person having some interest that will be affected by the probate can contest it. Such persons include next of kin who will receive property if the will is set aside and intestacy results, purchasers of property from the heir or heirs, administrators or personal representatives under prior wills, and the state, if there is a possibility of escheat, which means that the government will receive the property if no living heirs can be found. Creditors, however, generally are not entitled to contest the will of a debtor.

A personal representative must defend the will against attack and must employ his or her best efforts to have it sustained if he or she reasonably believes that the will is valid.

Methods by which a will can be contested generally include a contest in the court having jurisdiction over probate, an appeal from the order granting or denying probate, and separate actions to set aside the order granting or denying probate.

There is no constitutional right to trial by jury in probate or will contest proceedings. Most states, however, have statutes making a trial by jury available in a will contest. Statutes usually impose time limits on the institution of will contests.

Agreement not to Contest

A testator can enter into a contract with her or his heirs in which they agree not to contest a will. If the contract is supported by consideration—something of value—and the agreement is otherwise valid, the heirs will be prevented from contesting the will. The beneficiaries under a will and the heirs can enter into a valid contract not to contest a will. States vary as to the remedies a party to an agreement not to contest a will has upon breach. These include an injunction against the prosecution of the contest, an action at law for damages, or a defense to the contest.

An agreement among heirs and beneficiaries not to contest a will is a way to avoid a costly will contest proceeding. The heirs and beneficiaries negotiate a settlement that may defeat the intention of the testator in how the assets are distributed. A settlement will be valid if all interested parties agree, but it must not exclude anyone entitled to property under the will. Under some statutes the compromise or settlement must be submitted to the probate court for approval.

Guardianship of Minor Children

Wills often contain instructions on who should be appointed legal guardian of the decedent's minor children. The probate court may investigate the qualifications of the proposed guardian before granting an order of appointment. When a will does not contain a guardianship provision, the court itself must determine, based on the best interests of the children, who should be appointed guardian.

Right of Review

A right of appeal from a probate decree is given to any person who would suffer a direct financial loss as a result of the decree. The appellate court is restricted to a consideration of the questions presented to and determined by the lower court. An issue not presented to the probate court usually will not be considered.

further readings

Brown, Gordon W. 2003. Administration of Wills, Trusts, and Estates. 3d ed. Clifton Park, N.Y.: Thomson/Delmar Learning.

Christianson, Stephen G. 2001. How to Administer an Estate: A Step-by-Step Guide for Families and Friends. 4th ed. Franklin Lakes, N.J.: Career Press.

Esperti, Robert A., and Renno L. Peterson. 1992. The Living Trust Revolution: Why America is Abandoning Wills and Probate. New York: Viking Penguin.

Foster, Frances H. 2001. "The Family Paradigm of Inheritance Law." North Carolina Law Review 80 (December).

Monopoli., Paula A. 2003. American Probate: Protecting the Public, Improving the Process. Boston: Northeastern Univ. Press.

Shepherd, Thomas H. 2001. "It's the 21st Century… Time for Probate Codes to Address Family Violence: A Proposal that Deals with the Realities of the Problem." St. Louis University Public Law Review 20 (winter).


Estate and Gift Taxes; Testamentary.

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The court process by which a will is proved valid or invalid. The legal process wherein the estate of a decedent is administered.

Marshall v. Marshall a.k.a Anna Nicole Smith

After years of convoluted federal and state litigation with accompanying appellate review, the U.S. Supreme Court decided, in Marshall v. Marshall, 547 U.S. ____, 126 S.Ct. 1735, ____ L.Ed.2d ____ (2006), that Vickie Lynn Marshall, a.k.a. Anna Nicole Smith, could pursue her probate-related claims (involving her deceased husband's estate) in federal court. The unanimous high court reached its decision on a very narrow issue that clarified the right of a federal judge to intervene in a state probate matter. Writing for the Court, Justice Ruth Bader Ginsburg explained that while the "probate exception" to federal jurisdiction generally means that state probate courts adjudicate matters involving wills and estate administration, the present case included additional claims that made federal jurisdiction appropriate. The high court's ruling reversed a Ninth Circuit Court of Appeals decision that had overruled both federal bankruptcy and federal district court decisions.

In 1994, billionaire J. Howard Marshall II was approaching the age of 90 when he married 26-year-old Anna Nicole Smith (1992 Playmate of the Year and model for jeans commercials) in 1994. One year later, in 1995, he died without naming his new widow (whose real name is Vickie Lynn) in the will or accompanying trust instrument. His son, E. Pierce Marshall (Pierce), was the sole named heir in the estate plan.

In ongoing Texas probate court proceedings, Vickie argued that her deceased husband had intended to provide for her through a "catch-all" trust. While probate was still pending, Vickie filed for bankruptcy under Chapter 11 of the federal Bankruptcy Code in a California federal bankruptcy court. Pierce Marshall then filed a proof of claim in the bankruptcy court, alleging that Vickie had defamed him in her contacts with the media, accusing him of forgery, fraud, and overreaching to gain control of his father's assets. Pierce petitioned for a declaration that his claim was not dischargeable in bankruptcy. In her responsive pleading, Vickie raised counterclaims, including one alleging that Pierce tortiously interfered with her husband's intended gift to her in a scheme to deny her an inheritance.

The federal bankruptcy court held that Vickie's tortious interference counterclaim turned her responsive pleading into an "adversary proceeding" under Fed. Rule Bkrtcy. Proc. 3007. Accordingly, it ruled on the merits of the claim and counterclaims. It further ruled that both Vickie's objection to Pierce's claim as well as her own counterclaim qualified as "core proceedings" under 28 U.S.C. § 157, giving the court authority to enter a final judgment disposing of those claims. It then granted summary judgment for Vickie on Pierce's claim and awarded her several million dollars (in both compensatory and punitive damages ) for her counterclaim. Pierce next filed a post-trial motion to dismiss for lack of subject-matter jurisdiction, arguing that Vickie's counterclaim related to a probate matter reserved for the Texas probate court proceedings. The bankruptcy court dismissed his motion, holding that federal courts have jurisdiction to adjudicate rights in probate matters, barring any final judgment that would interfere with a state court's possession of the property.

Meanwhile, a Texas probate court declared that J. Howard Marshall's estate plan, naming only Pierce as beneficiary, was valid.

Next, Pierce appealed the bankruptcy court's ruling in federal district court. While the district court agreed with the bankruptcy court that there was federal jurisdiction over the matter unless such jurisdiction interfered with probate proceedings, it disagreed that Vickie's counterclaim qualified as a "core proceeding" over which a bankruptcy court could exercise plenary power, 28 U.S.C. § 157(b), (c). Therefore, the federal district court treated the bankruptcy court's decision as a proposed rather than final ruling, and undertook its own review de novo. Ultimately, it adopted and supplemented the bankruptcy court's findings that Pierce had tortiously interfered with Vickie's expectancy by conspiring to suppress or destroy an inter vivos trust inter vivos trust that J. Howard had directed his lawyers to prepare for Vickie. The court also found that Pierce had tried to divest his father of assets by backdating, altering, and otherwise falsifying documents that he presented to his father under false pretenses. The court awarded Vickie some $44.3 million in compensatory damages, and based on "overwhelming" evidence of willful fraud and malice on the part of Pierce, an equal amount in punitive damages.

The Ninth Circuit Court of Appeals reversed. It held that the probate exception barred federal jurisdiction in this case. It further explained that a State's vesting of exclusive jurisdiction over probate matters stripped federal courts of jurisdiction over any probate matter. Finding Vickie's counterclaim fell within a probate court's determination of validity of a decedent's estate planning instrument, whether involving questions of fraud, undue influence, or tortious interference, the Ninth Circuit struck both federal decisions.

Not so, said the U.S. Supreme Court. It unanimously held that the Ninth Circuit had no warrant from Congress or from previous Supreme Court decisions for its sweeping extension of the probate exception. (The so-called probate exception is not found in text of either federal statute or Constitution, but rather, devolves from longstanding English legal history and subsequent case law.) According to the Supreme Court, Vickie's counterclaim, provoked by Pierce's claim in the bankruptcy proceedings, did not involve the administration of an estate, the probate of a will, or any other purely probate matter. Instead, it was grounded in common tort law as a claim of tortious interference. The only connection with probate matters was the fact that the subject matter of Pierce's tortious interference was an intended gift of inheritance. The remedy remedy for such a claim is an in personam judgment (in personam jurisdiction) against Pierce personally, and not the probate or annulment of any will or estate instrument.

Moreover, said the Court, while it is clear, under Erie R. Co. v. Tompkins, 58 S.Ct. 817, 82 L.Ed.2d 1188 (1938), that Texas state law governs the substantive elements of Vickie's counterclaim, "[I]t is also clear … that Texas may not reserve to its probate courts the exclusive right to adjudicate a transitory tort."

Justice Stevens filed a separate opinion, concurring in part and concurring in the judgment. The reasoning in his opinion went further than that of the majority, in that he doubted there is any "probate exception" whatever that ousts a federal court of jurisdiction it otherwise possesses.

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The court process by which a will is proved valid or invalid. The legal process wherein the estate of a decedent is administered.

Death of Anna Nicole Smith Leads to Numerous Legal Disputes

In February 2007, less than one year after she won a case before the U.S. Supreme Court, celebrity Anna Nicole Smith died in a Florida hotel room. Her death came only months after she gave birth to a daughter, which occurred just days before her adult son died accidentally from a combination of medications. Smith's death led to a number of legal disputes involving her mother and a number of men claiming to be the father of her child.

Smith was born Vickie Lynn Hogan in Houston, Texas in 1967. She withdrew from school after the 11th grade and began working as a waitress at a fried chicken restaurant in Mexia, Texas. She married a fry cook named Bill Smith in 1985 and had a child with him the next year. She separated from Smith in 1987 and eventually became an exotic dancer. She entered a contest to appear in Playboy magazine and was selected for the publication in 1992. The appearance made her a celebrity, as she later became the Playboy Playmate of the Year and a model for Guess? jeans.

Prior to her appearance in Playboy, she met 89-year-old oil tycoon J. Howard Marshall II, who was a customer at a strip club at which Smith performed. The two developed a relationship, and a year after her divorce with Billy Smith became final, she married Marshall. Marshall died in 1995, leading to a protracted legal battle over the next decade between Smith and E. Pierce Marshall, the son of the J. Howard Marshall. The elder Marshall had left a fortune of about $1.6 billion, and Smith maintained that he had promised to leave a significant portion to her.

A federal bankruptcy judge in 1996 awarded $474 million to Smith, though a federal district judge later reduced the award to $88 million. In 2004, though, the Ninth Circuit Court of Appeals held that the California court did not have jurisdiction over the case and vacated the lower court rulings. Smith appealed the decision to the U.S. Supreme Court, which granted certiorari in 2005. On May 1, 2006, the Court held that the federal court had properly asserted jurisdiction over the case and reversed the Ninth Circuit's decision. Marshall v. Marshall, 547 U.S. 293, 126 S. Ct. 1735, 164 L. Ed. 2d 480 (2006).

Smith remained in the spotlight despite her legal problems. From 2002 to 2004, she appeared on her own reality show, entitled "The Anna Nicole Smith Show," which also featured her son and her lawyer, Howard K. Stern. She also became a spokesperson for TrimSpa, which produced a diet pill that Smith reportedly used to lose nearly 70 pounds.

Events that occurred after her victory at the Supreme Court were mostly tragic. She gave birth to a daughter named Dannielynn Hope Marshall Stern in the Bahamas September 2006. However, the identity of the child's father was in question even before the baby was born. Celebrity photographer Larry Birkhead claimed paternity several months before Dannielynn's birth, but Stern's name was included on the birth certificate. After the baby was born, Smith's son Daniel, then 20, flew to the Bahamas to see his mother. Three days after the baby was born, Daniel collapsed in his mother's hospital room and died. Tests later revealed that Daniel died of a lethal combination of methadone and the anti-depressants Zoloft and Lexapro.

Daniel's death left Smith in disarray. In the wake of Daniel's death, Smith and Stern exchanged informal vows in the Bahamas in a ceremony that did not qualify as a legal marriage. Stern appeared on the talk show Larry King Live and said that he was the true father of Smith's daughter. In October, Birkhead filed a paternity lawsuit against Smith, claiming that Smith was addicted to drugs and that Stern was claiming to be the child's father for his own financial gain. The dispute between Birkhead and Smith continued until Smith's death.

Smith returned to the United States in January after a California judge required Smith to submit the baby to DNA testing. For the next month, Smith's lawyers continued to fight the court ordered test, but on February 8, Smith collapsed in her hotel room in Hollywood, Florida and was rushed to the hospital. She died an hour after her arrival. In the wake of her death, the battle over Dannielynn's custody heated up. An attorney named Richard Millstein was awarded temporary custody of Dannielynn, pending the result of the paternity test.

Disputes about where to bury Smith's body also arose. Smith's estranged mother, Virgie Arthur, wanted to take the body back to Texas, but Stern and others wanted for her to be buried in the Bahamas. On February 23, a Florida judge, Larry Seidlin, settled the question by giving custody of Smith's remains to Millstein, who chose to bury Smith in the Bahamas. Seidlin himself made news with his tearful issuance of the order granting custody to Millstein. Arthur appealed Seidlin's ruling, but a Florida appellate court affirmed the decision. Smith was buried in the Bahamas on March 2. Autopsy results later revealed that she died of an accidental overdose of several drugs.

A third name in the custody dispute arose shortly after Smith's death. Prince Frederic Von Anhalt, husband of Zsa Zsa Gabor, claimed that he was the true father of Dannielynn and agreed to submit to paternity testing along with Birkhead and Stern. The three men submitted to the paternity test, which was administered on March 21 (several other men, including Smith's former bodyguard, also claimed to be the child's father). On April 10, results from the DNA test revealed that Birkhead was the true father. A court in the Bahamas granted custody of Dannielynn to Birkhead and allowed him to change her birth certificate to remove Stern's name and add his own. In May, Birkhead took the baby to Kentucky.

Smith's estate will likely remain entangled in litigation for some time to come. In addition to the final resolution of her case against her former husband's estate, Smith was also named as a defendant in a class action suit against TrimSpa. Additionally, Smith's will, which was drafted in 2001, has caused significant controversy, because it left all of her assets to her son Daniel. Moreover, the will could be read to exclude future children or spouses, which could mean that Dannielynn would receive nothing from her mother's estate.

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probate (prō´bāt), in law, the certification by a court that a will is valid. Probate, which is governed by various statutes in the several states of the United States, is required before the will can take effect. The procedure requires that notification of a hearing be given to all persons who may possibly inherit the deceased's property. Lost wills and oral wills may also be probated in some states if proof of due execution is furnished. If the will is certified, the court will issue letters testamentary authorizing the executors to carry out the will's provisions. The judge sitting on a probate court is ordinarily called a surrogate.

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pro·bate / ˈprōˌbāt/ • n. the official proving of a will: the will was in probate | [as adj.] a probate court. ∎  a verified copy of a will with a certificate as handed to the executors. • v. [tr.] establish the validity of (a will).

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probate official proving of a will. XV. — L. probātum thing proved, sb. use of n. pp. of probāre PROVE; see -ATE1.
So probation testing; proving. XV. — L.; hence probationer (-ER2) XVII.

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probate Legal term for the certification by a court of law that a document purporting to be the will of a person who has died is valid. The term also applies to the official copy of a will, with the certificate of its having been proved valid.