What is Probate?

“Probate” has gained the reputation of a four-letter-word in the estate planning community. It has also become a word that many non-lawyers use to describe why they need a Trust.

Probate has some very formal definitions within the legal community – don’t worry about those. As a non-lawyer, here’s what you should know:

1. “Probate” is not necessarily a four-letter word. In its simplest form, probate is the process by which the court administers the debts and assets of a deceased person. The Executor or Personal Representative will work with an attorney to administer the estate before the court. The goal is to collect information, pay the decedent’s debts and distribute assets of the estate. The probate process can get rather technical and there are a number of strategic decisions that will requie the skill of a knowledgeable probate lawyer.

2. Not all assets go through probate. Assets that are in the decedent’s sole name will go through the probate process. Other assets, like jointly owned assets (e.g. joint bank accounts), assets with beneficiary designations (e.g. life insurance or retirement assets) and assets already put into a Trust, generally pass outside of probate.

3. Assets that do pass through probate will be distributed either (1) as directed in a Will, or (2) if there is no Will, as directed by the state’s intestacy statute.

4. The probate process can be technical and generally takes a fair amount of time to complete. Throughout the decedent’s lifetime they likely accumulated a number of assets, debts, etc. A lifetime of assets and debt accumulation coupled with distributing assets to the decedent’s family can be complicated and difficult to straighten out.

5. Probate is where people can contest the decedent’s Will and fight over an alternate distribution scheme.

While probate can cause some delay and expense, it it not necessarily the four-letter word we have been led to believe. It can serve as a very useful tool for administering the estate of a decedent. Your best bet, hire an good lawyer. It will clarify and speed up the process for everyone.