Probate is the legal process that takes place when someone dies and leaves behind assets such as bank accounts, property, and financial investments to be distributed.

If the deceased person had a valid will, the process is started by the executor named in the will. If the deceased did not leave a valid will, the probate court appoints an administrator to oversee the estate and the distribution of assets to beneficiaries.

Each state has its own laws and requirements that determine if and how or if an estate must be probated. Often, it depends on such things as the size of the estate, whether there is a surviving spouse, whether the estate includes real estate, and whether there are liens, debts, or taxes due on the estate.

In other words, the purpose of probate is to ensure the legal transfer of the decedent’s assets to the rightful heirs. The process can take many months or longer and can be expensive; and depends on value of the estate and on fees, expenses, and other factors.

In most cases, if there is a will and the beneficiaries do not question its terms, if there is an attorney involved, an attorney may have them sign waivers and file the paperwork with the court, including the last will, a copy of the death certificate, and a list of known creditors.

If there is no will, and/or if one or more of the creditors contests it, the process may take longer and cost more, as the administrator must locate all the legal heirs of the deceased, such as surviving spouses, children, and parents, and determine how to distribute the assets in compliance with that state’s intestate succession laws.

Because probate can be so expensive and time consuming, many people choose to avoid it altogether by creating an estate plan that will allow their assets to bypass the probate process, most often by creating a revocable living trust, which is essentially a set of instructions that the person who makes the trust leaves to their executor detailing how they want their property to be distributed after their death. As your title company, we’re here to resolve any title-related issues in a transaction where probate may come into play.

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This material is meant for general illustration and/or informational purposes only. Although the information has been gathered from sources believed to be reliable, no representation is made as to its accuracy. This material is not intended to be construed as legal, tax or investment advice. You are encouraged to consult your legal, tax or investment professional for specific advice.  

About Bobbi Pronin

Barbara Pronin is an award-winning writer based in Orange County, Calif. A former news editor with more than 30 years of experience in journalism and corporate communications, she has specialized in real estate topics for over a decade. 

Bobbi is not an employee of Anywhere Integrated Services or affiliated with its title companies.