What is Probate?

Paul M. Schmidt , Tom Vercauteren | 03.11.24

When somebody passes away, their estate may need to go through probate. Probate is a legal process in which a court verifies the validity of the will and supervises the transfer of the estate’s assets to those beneficiaries who are entitled to receive them. This process typically takes 6 – 12 months to complete and can vary depending on things like the complexity of the testator’s estate, the cooperation of the heirs, and whether estate tax or income tax returns need to be filed. In this article, we’ll discuss the probate process, what assets need to go through probate, as well as the benefits and disadvantages of probate proceedings.

The probate process

When someone with a will dies (they are known as the ​“testator”), their original will must be filed with the probate court for the county in which they lived. The will (and other documents filed with the court) become part of the public record. 

At the time that the will is filed with the probate court, the personal representative named in the will normally applies to the court to be appointed as the testator’s personal representative. The personal representative is the testator’s administrator. To learn more, read ​“What Does a Personal Representative Do?”.

After the personal representative’s appointment, they must take the necessary steps to resolve the testator’s estate, such as paying off outstanding bills, paying necessary taxes, and paying bequests under the will. Once these are taken care of, the personal representative can distribute the testator’s assets to their beneficiaries. When these actions, and all other necessary actions, have been taken to resolve the estate, the personal representative will close the estate, thus concluding the probate process. 

Probate vs. non-probate assets

While all wills go through probate, not all of the assets included in a will necessarily go through the probate process. Whether or not an asset needs to go through probate is dependent on things like how it is titled, and whether or not it has a beneficiary designation.

What assets need to go through probate?

Assets that are individually owned without a ​“non-testamentary” designation, like a beneficiary designation on an IRA, need to go through probate. For example, if John dies as the sole owner of his home, his personal representative must transfer the title to the beneficiary named in John’s will. Some examples of these could be:

• Real estate
• Vehicles
• Investment accounts
• Bank accounts
• Businesses

What assets don’t need to go through probate?

Assets that are jointly owned or have a beneficiary designation (like a retirement account) don’t need to go through probate. Some examples of assets that don’t need to go through probate are:

• Assets that are in the name of your trust. For example, if you solely own a home, but retitle the deed in the name of your revocable trust, it would be a part of your trust and thus avoid probate.
• Assets with a named beneficiary other than the estate. Examples may include retirement accounts, life insurance, bank accounts, and some types of stocks and bonds.
• Jointly owned property. For instance, if you own a house with your spouse, and pass away, ownership will automatically transfer to your spouse. (Note: this is not the case if you and your spouse own the house as ​“tenants in common.”)

Advantages and disadvantages of probate

Probate exists to ensure that a testator’s estate is administered in a timely and orderly manner. The procedure also provides significant protection against later claims by creditors. That being said, in certain circumstances, probate can involve additional costs and difficulties that you may want to avoid. 

Benefits of probate

• Probate proceedings are legal processes, so they have court oversight. With the court supervising the probate process, there is less likely to be mismanagement of the estate or fraud.
• Beneficiary disagreements will be resolved by the court. If a beneficiary is unhappy with a decision made by the personal representative, they can file a motion with the court to have them reconsider it.
• Probate also keeps the fiduciary on track with deadlines and resolves creditor issues.

Why might you want to avoid probate?

• Your loved ones won’t have to deal with the administrative costs that go along with probate court proceedings. Depending on the complexity of your estate and how well your will is written, probate court proceedings can be expensive for your beneficiaries due to legal and filing fees.
• Probate proceedings are public, so anyone can find out what assets you had and who you included in your will. If you disinherited one of your children in a will, not only is this public information, but the disinherited child is also entitled to a copy of the will.

Conclusion

Probate is a public proceeding designed to ensure that the testator’s assets are distributed in line with their estate plan. Whether or not you’d like your estate to go through probate depends on your situation. Fortunately, there are ways for you to determine whether your estate will be subject to probate by using certain estate planning vehicles. For one example, a well-constructed revocable trust will not have to go through probate. To learn more about the difference between wills and revocable trusts, read Wills vs. Revocable Trusts.

To ensure that your probate process runs smoothly for your beneficiaries, or to avoid probate altogether, it’s important to seek out professional help to achieve your estate planning goals. Any of Boardman Clark’s Trusts and Estates attorneys would be happy to help.