If the Probate Courtperson who has died (the “decedent”) had seen an estate planning attorney and followed the lawyer’s advice, then a will or trust or both may have been prepared.  If a durable power of attorney had been prepared, that power of attorney will no longer be effective after death concerning the decedent’s property, unless it provides for power concerning the decedent’s remains.

Probate does not include property held by the decedent’s Trust. In Probate, the title to a deceased person’s property passes on the owner’s death to the devisees identified in the decedent’s last will or, in the absence of a will (“intestacy”), to the decedent’s heirs as prescribed in the laws governing intestate succession.  The Probate Estate is not a legal entity and does not receive the property. ”Estate” merely describes all of the decedent’s property that passes to the identified or intestate heirs by operation of the Probate.  Property of the decedent is ”in” the Probate Estate, for the purpose of administration, until it is delivered to the owners, who are the heirs or the devisees, but only following an Order by the Probate Court.

If the decedent held sufficient assets at death that were not held in trust, the court will appoint a Probate Representative for the estate. The Probate Representative for the Estate will either be an Executor, if one is identified in the Will, or an Administrator if the decedent died without a will (“intestate”) or if the designated Exeuctors will not act.  The Probate Estate Representative will marshal the decedent’s assets, administer the estate, pay the required taxes, settle creditor claims, account for the administration and eventually petition the Probate Court for an order to distribute the assets of the estate to the heirs or devisees. The attorney for the Probate Estate Representative will provide advice and counsel while shepherding the estate through the Probate process.