Probate is the court process that validates a will, appoints a person to manage a deceased person's estate, and oversees paying debts and distributing property. In asbestos cases, opening an estate is often needed so someone has legal authority to pursue or settle the claims of a person who has died.
Origin
The word comes from the Latin probare, to prove, from the proving of a will before a court. Each U.S. state has its own probate code and courts, and procedures, costs and timelines differ a great deal from state to state.
Significance in Asbestos Context
When a person with an asbestos disease dies, their own claims, such as for pain and suffering and medical expenses, usually pass to their estate as a survival action, and trust claims also belong to the estate. Only a court-appointed personal representative, called an executor or administrator, can generally sign lawsuit papers, trust claim forms and releases for the estate. That means many families need to open a probate estate even if the person left little property, and sometimes to reopen an estate that was closed years ago. Wrongful death claims for the family's own losses are handled differently in different states; some require the personal representative to bring them. Some states have simplified small-estate procedures, but asbestos claims often do not fit them. Settlement money that goes to the estate may need court approval and is distributed under the will or state inheritance law, which may differ from how a wrongful death recovery is divided.
Example Sentence
Two years after her father's death, the family reopened his estate in probate court so his daughter could be appointed to file his trust claims.
Related Terms
Letters of Administration, Personal Representative, Survival Action, Wrongful Death, Death Certificate, Release
Notes
- Keep the original will, death certificate and any probate papers; they are needed for nearly every claim after death.
- An estate may need to be opened or reopened just to pursue asbestos claims; your lawyer can coordinate this.
- Tell your lawyer about all surviving family members; state law may give each of them rights.
Category: Court Procedures · All Lexicon terms A–Z
This page is provided for general informational purposes and does not constitute legal advice. Every asbestos case turns on its own facts, exposure history, diagnosis, deadlines, available evidence, and applicable law. Reviewing this page does not create an attorney-client relationship. For advice about your specific situation, call 833-4-ASBESTOS for a free case review.