Technically, probate is defined as the process of proving a will’s validity in court and executing its provisions under the guidance of the court.

More commonly and more broadly, probate refers to the complete process of administering a deceased person’s estate in state court.

The probate process

The probate process includes:

• Filing any will with a local court. If there’s no will and the deceased person didn’t transfer property by contract or operation of law, such as through a life insurance policy or joint tenancy, the estate must still go through probate. The property is then distributed according to the state laws of intestate succession.
• Having any will proved valid to the court (typically a routine process)
• Appointing an executor or administrator
• Identifying and inventorying assets
• Paying any debts and taxes
• Distributing the probate estate property

Probate can be time consuming and costly and require the services of an attorney, but that’s not always the case. Probate procedures and expenses depend on state laws and the size and complexity of an estate.

Many states have enacted the Uniform Probate Code, which simplifies and streamlines the probate process and reduces expenses by allowing self-proved wills, proof of a will by affidavit of witnesses, waiver of bond, and unsupervised administration.

In addition, most states allow small estates to use simplified summary probate procedures to reduce the time and cost of probate. And some states exempt small estates from probate altogether, allowing qualified heirs to complete a simple affidavit process instead.

In other cases, most routine probate administrations take a year or under, but the probate process for large or complex estates can take longer.

The probate estate

The probate estate is the portion of your estate that must pass through probate.  Any property transferred by probate avoidance methods is nonprobate property and is not part of the probate estate.

Nonprobate assets include those you own jointly that pass automatically upon death to the co-owners. Nonprobate assets also include assets that pass automatically by contract at death to your named beneficiary. These include the proceeds of life insurance policies, Social Security benefits, pension plan proceeds, IRAs, and survivors’ interests in annuities.

Some probate advantages

Most importantly, probate helps ensure that only those entitled to receive your estate do so.

And if you have complicated or large creditor problems, probate may have some advantages. Under most state laws the probate process limits the period for notified creditors to file claims. This allows your beneficiaries to inherit your property free of concern that creditors will later claim a share.

A living trust doesn’t create such a cut-off period. That means your property could be subject to creditors’ claims for a much longer time, even after the property is transferred to your beneficiaries.

Probate can also help protect your estate from fraud by providing a process for creditors to prove the validity of their claims.

Article is for educational purposes only and is not intended to provide specific tax or legal advice. For answers to tax questions, please see your tax professional. For legal questions, consult an attorney.

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