What exactly is “probate,” anyway?

Posted on October 13, 2015, by Nicholas Medley
Probate Law

One thing I’ve seen clients have a lot of confusion about is the probate process. It’s one of those things that almost everyone has heard of, but not many people know what it means for them personally.

What is probate? Probate (or “probating an estate”, “opening up probate”, etc.) is the process by which a deceased person’s assets are transferred to others. This process involves a court proceeding in which the court reviews and approves these transfers.

Do you have to go through the probate court for every deceased person? No. Probate is used to transfer assets that were in the deceased person’s name only when they died. For example, let’s say a widowed woman dies, leaving behind an adult child.

When she died, she had a bank account with $50,000 in it. The account was only in her name. In order for the child to inherit this money, a probate court estate will have to be opened. If, however, that same account had been in joint name with the woman and her adult child when she died, no probate would be necessary. Instead, the woman’s name would simply be removed from the account, leaving the child as the sole owner. The difference is how the asset is titled.

That’s if I die without a will or trust, though. If I have a will, can’t my personal representative just take my will to the bank or property appraiser’s office and show it to them? Won’t that be enough to transfer the assets to whomever I leave them to? Sadly, no. It’s not that easy. Even if you have a will that specifically leaves your assets to certain people, your will has to go through probate in order to transfer those assets to those people.

The bottom line: if you die owning assets that are just in your name, your estate will more than likely have to be probated in order for the people named in your will to receive the things you left to them (or for your next of kin to inherit them, if you die without a will).

However, there are ways to structure your assets so as to minimize probate costs as much as possible, which can go a long way toward reducing the stress and headaches your loved ones will experience after your passing.

Call or email me to schedule a consultation, and I’ll be happy to sit down with you and discuss the best ways to make sure the probate process goes as smoothly as possible