Probate is a court-supervised process for transferring a deceased person’s assets to the beneficiaries listed in his or her will.
The court procedure generally involves proving the validity of the will, inventorying and appraising the estate property, paying any debts or taxes (including estate taxes), and transferring the property as directed by the will or state law if there is no will.
Typically, the executor named in your will would start the process after your death by filing a petition in court and seeking appointment. Your executor would then take charge of your assets, pay your debts and, after receiving court approval, distribute the rest of your estate to your beneficiaries. If you were to die intestate (that is, without a will), a relative or other interested person could start the process. In such an instance, the court would appoint an administrator to handle your estate. Personal representative is another term used to describe the administrator or executor appointed to handle an estate.
The probate court is accustomed to resolving disputes about the distribution of assets fairly quickly through a process with defined rules. In addition, the probate court reviews the personal representative’s handling of each estate, which can help protect the beneficiaries’ interests.
One disadvantage is that probates are public. Your estate plan and the value of your assets will become a public record. Also, because lawyer’s fees and executor’s commissions are based on a statutory fee schedule, a probate may cost more than the management and distribution of a comparable estate under a living trust. Time can be a factor as well. A probate proceeding generally takes longer than the administration of a living trust.
Simpler procedures are available for transferring property to a spouse or for handling estates in which the total assets amount to less than $150,000.
Typically, the following assets would NOT need to go through a probate: (1) Assets held in joint tenancy (if the remaining joint tenant is still alive); (2) Accounts held as “Pay on death” or “in Trust for” accounts; (3) Retirement accounts which pass to a living designated beneficiary; (4) Life Insurance proceeds which pass to a living designated beneficiary; and (5) Assets titled in a Trust.