Probate Avoidance
Understanding Probate
In the jurisdictions in the U.S. that recognize a married couple's property as community property or as tenancy by the entireties, if a person dies intestate, his estate passes to a surviving spouse without a probate.
If the estate is not automatically devised to the surviving spouse, it is necessary to "probate the estate", whether or not the decedent had a valid will. A court having jurisdiction of the decedent's estate (a probate court) supervises probate, to administrate the disposition of the decedent's property according to the law of the jurisdiction and the decedent's intent as manifested in his testamentary instrument.
The will usually names an executor (personal representative), a person tasked with carrying out the instructions laid out in the will. The executor marshalls the decedent's assets. If there is no will, or if the will does not name an executor, the probate court can appoint one. Traditionally, the representative of an intestate estate is called an administrator.
In some cases, where the person named as executor cannot administer the probate, or wishes to have someone else do so, another person will be named as administrator. An executor or an administrator may receive compensation for his service.
The probate court may require that the executor provide a fidelity bond, an insurance policy in favor of the estate to protect against possible abuse by the executor.
The representative of a testate estate who is someone other than the executor named in the will is an administrator with the will annexed, or administrator from the Latin cum testamento annexo. The generic term for executors or administrators is personal representative.