What is Probate?

September 23, 2015

Probate is the legal process to transfer assets when someone passes away. Through probate, clear title and ownership are established as to the assets of the deceased person.

Generally, probate is required if the person died with an executed will (testate), or if the person died without a will (intestate). If the person dies testate, then the probate court will distribute the assets of the estate in accordance with the will. If a person dies testate, then the will either names an executor to oversee the estate, or the court will appoint an administrator if the will does not name an executor. If the person dies intestate, then the probate court will distribute the estate according to the state intestacy laws. Normally, intestacy is not recommended because the person loses control over how his/her estate will be distributed.

In most cases, people want to avoid probate for several reasons. One, probate is usually time-consuming and can take anywhere from six months to two years, depending on the size of the estate. Second, probate can be expensive, as the estate has to pay executor/administrator fees, attorney fees, and court-filing fees. Third, probate is often inflexible because the probate court controls the process. Finally, there is a lack of privacy in probate because it is a public process. However, depending on the size of the estate, some smaller estates can avoid excessive costs and time through certain expedited forms of probate, such as a set-aside proceeding or a summary administration.

There are various ways to avoid going through probate. For example, assets held in a living trust avoid probate and are distributed according to the terms of the trust. Also, jointly-owned assets, such as joint bank accounts, usually avoid probate as long as the surviving owner is alive. Probate can also be avoided through life insurance and retirement plans, as long as there are valid beneficiaries designated.

Whether you need help with estate planning so you can avoid the probate process, or whether you need help going through the probate process, the Morris Estate Planning Attorneys have the experience and expertise to help you.