A will is determined to be the will-maker's final statement regarding how the will-maker wants his or her property distributed. Probate is the court-supervised process of proving a will, appointing an executor, and settling an estate; but by custom, it has come to be understood as the legal process whereby a dead person's estate is administered and distributed. Probate also means the process by which assets are gathered; applied to pay debts, taxes, and expenses of administration; and distributed to those designated as beneficiaries in the will.

In some states, after a person residing in that state has died without a valid will or trust, his or her property immediately becomes the property of the spouse, if any, without the need for probate. (This is the case in states that recognize a married couple's property as community property or as tenancy by the entireties.) However, in cases where the surviving spouse does not automatically succeed to the decedent's property, then it is usually necessary to "probate the estate", whether or not the decedent had a valid will. A court having jurisdiction of the decedent's estate (often called a "probate court") supervises probate, in order to ensure the decedent's property is distributed according to the direction of his will and the laws of the state.

The will usually names an executor, a person tasked with carrying out the instructions laid out in the will. The executor's most common task is the marshalling of the decedent's assets throughout the probate process. If there is no will, or if the will does not name an executor, then the probate or other court having jurisdiction of the decedent's estate can appoint one. Traditionally, the representative of an intestate estate is called an administrator. The representative of a testate estate who is someone other than the executor named in the will is an administrator with the will annexed, or administrator c.t.a. (from the Latin cum testamento annexo.) The generic term for executors or administrators is personal representative.

Some of the decedent's property may never enter probate because it passes to another person contractually, such as the death proceeds of an insurance policy insuring the decedent or bank account that names a beneficiary or is owned as "payable on death", and property (usually, again, a bank account) legally held as "jointly owned with right of survivorship". Property held in a living trust also avoids probate. In these cases, the personal representative provides documentation to the court, and the property is prevented from entering probate. The first task of the personal representative after opening the probate case with the court is to inventory and collect the decedent's property. Next, the personal representative pays any debts and taxes that must be paid. Finally, the personal representative distributes the remaining property to the decedent's beneficiaries, either as instructed in the will, or per the intestacy laws of the state.

Probate generally lasts several months, occasionally over a year before all the property can be distributed, and incur substantial court and attorney costs. One of the many ways to avoid probate is to execute a living trust. This is a separate entity to which a person transfers ownership of his real property (house, etc.,) from himself to a trust which he controls and can revise at any time (except in the case of an irrevocable trust.) Upon death, the persons named as beneficiaries in the trust acquire ownership of it and, therefore, all the property the trust owns.

As probate is a public process, a living trust has the added advantage of preserving the privacy of the deceased and his heirs as well as avoiding some estate tax. Life insurance, savings accounts, and joint tenancies with the right of survivorship are some of the other ways people use to avoid probate. It must be noted that avoiding probate does not necessarily mean estate taxes have also been avoided, as the laws imposing the federal estate tax have been modified to include within the definition of the person's taxable estate, property held in a living trust, life insurance, "payable on death" or "transfer on death" financial instruments, and most other property which is transferred from a dead person to a living person in consequence of the death. Inter vivos trusts can reduce estate taxes if they are properly structured, but that is not related to the avoidance of probate. Generally, to avoid an estate/inheritance tax, a person must give it away irrevocably or leave it to a qualified charity.

 

Advantages of Probate

• Orderly transfer of assets in an open manner, approved by the court
• All heirs and beneficiaries are protected by the court
• Validity of title of the transferred assets is not in question
• All questions and disputes of the distribution of your estate are settled under court supervision
• Creditor's claims against your estate can be made for a limited time (state law dictates)
• Your estate, while in probate, is a separate tax entity. Prior planning may afford some tax savings.

Disadvantages of Probate Probate

• It can become an extremely costly manner of transferring your assets
• The process can be very time consuming
• Probate court proceedings are inherently inflexible.
• Probate proceedings are a matter of public record. There is no privacy when your estate goes through probate.