Probate
Probate is the legal process through which a deceased person's will is validated by a court, debts are paid, and remaining assets are distributed to beneficiaries, typically taking several months to over a year and involving court supervision.
Exam Tip
Will does NOT avoid probate - it guides probate. Trusts, joint ownership, and beneficiary designations avoid probate.
What is Probate?
Probate is the court-supervised legal process that occurs after someone dies to validate their will, inventory their assets, pay outstanding debts and taxes, and distribute the remaining assets to rightful heirs or beneficiaries.
The Probate Process
| Step | Description |
|---|---|
| 1. Filing | File petition and death certificate with probate court |
| 2. Validation | Court validates (or invalidates) the will |
| 3. Inventory | Catalog all probate assets and values |
| 4. Pay Debts | Settle outstanding bills, debts, and taxes |
| 5. Distribution | Distribute remaining assets to beneficiaries |
Assets That Go Through Probate
| Probate Assets | Non-Probate Assets |
|---|---|
| Solely owned real estate | Joint tenancy property |
| Individual bank accounts | POD/TOD accounts |
| Personal property | Life insurance (with beneficiary) |
| Investments in individual name | Retirement accounts (401k, IRA) |
How to Avoid Probate
| Strategy | How It Works |
|---|---|
| Revocable Trust | Assets in trust pass outside probate |
| Joint Ownership | Property passes to surviving owner |
| Beneficiary Designations | Life insurance, retirement accounts transfer directly |
| POD/TOD Accounts | Payable/Transfer on Death goes directly to beneficiary |
Common Misconceptions
- "If I have a will, I avoid probate." Reality: A will does NOT avoid probate. It simply provides instructions for the probate court to follow.
Study This Term In
Related Terms
Power of Attorney (POA)
A power of attorney is a legal document that authorizes a designated person (the agent or attorney-in-fact) to make financial, legal, or healthcare decisions on behalf of another person (the principal), either immediately or upon incapacity.
Living Will (Advance Directive)
A living will is a legal document that specifies a person's wishes regarding medical treatment and life-sustaining measures if they become terminally ill or permanently incapacitated and unable to communicate their decisions.