Anyone holding assets in the United States or facing a U.S. estate as an heir will regularly encounter the term „Probate“. In general usage, it refers to the judicial probate proceedings in the USA is designated. Strictly speaking, „probate“ can also mean the judicial determination or admission of a will, depending on the state. In practice, however, the term usually encompasses the entire judicial process by which an estate is inventoried, managed, liabilities are settled, and then distributed to the rightful persons.

For German, Austrian, and Swiss clients, it is especially important to note: The probate process is not a uniform U.S. procedure. Inheritance law is predominantly regulated at the individual state level. Procedures, responsibilities, formal requirements, deadlines, and costs can therefore vary significantly between states such as Florida, New York, or California. For international estates, early coordination with the law of the last domicile, the location of the assets, and, if applicable, German inheritance and tax law is required.

A probate proceeding serves to enable the orderly legal settlement of an estate under court supervision. Typically, the will and its validity are first examined, if a will exists. The responsible court then appoints a Personal Representative. This person often functionally corresponds to the German administrator of an estate or executor of a will. However, their exact status and powers depend on the law of the respective federal state and on the will.

The personal representative is regularly tasked with,

• Identify, secure, and manage estate assets
• to examine estate liabilities and legitimate creditor claims,
• to arrange for the necessary tax returns and procedural documents,
• to represent the estate before banks, authorities, contractual partners, and courts
• to distribute the remaining assets to the beneficiaries named in the will or, in the absence of a valid will, to the statutory heirs

An effective will generally determines who will receive property and whom the testator wishes to appoint as personal representative. If there is no will or if it is not recognized, the statutory succession of the responsible state applies. This can lead to outcomes that deviate significantly from German concepts or the presumed will of the deceased.

The main proceedings are generally conducted in the state where the deceased had his or her last place of residence or domicile. There, the so-called domiciliary administration opened.

If additional assets, particularly real estate, are located in another U.S. state, further proceedings may be necessary there: the ancillary administration. Its purpose is to administer the estate assets located in this other state. Even if there are primary estate proceedings in Germany or abroad, these do not automatically replace U.S. proceedings.

This is particularly relevant for international mandates. For example, a German testator may have had their last place of residence in Germany but simultaneously own a house or condominium in Florida. In this case, in addition to the German probate proceedings, the specific procedural requirements of Florida for the assets located there must also be examined. The recognition of a foreign will, the appointment of an administrator, and the transfer of ownership do not automatically follow German law.

Florida has several methods of estate administration. Which option is appropriate depends primarily on the value of the assets subject to probate, the date of death, the estate’s liabilities, and the terms of any existing will.

The Formal Administration This is the standard and comprehensive probate proceeding. It is required, in particular, when the conditions for a simplified proceeding are not met or when the will specifies that such administration is required.

The court appoints a personal representative to manage the estate and carry out the legally required steps. These regularly include notifying interested parties, settling creditor claims, collecting and valuing assets, and the final distribution. For real estate, multiple heirs, outstanding claims, or cross-border issues, this procedure is often the appropriate, albeit more time- and cost-intensive, solution.