Overview

Probate is a legal process in which a probate court settles the estate of a deceased individual (the “decedent”). The process of probating a decedent’s estate involves gathering and accounting for the assets of the decedent, payment of debts, taxes, claims and costs of administration of the decedent and distribution of probate assets to the beneficiaries.

Typically, assets that are subject to the probate process consist of real estate, financial assets and personal property titled solely in the decedent’s name at death, which do not pass automatically (by operation of law, etc.) to a third party upon the decedent’s death. A simple method in which to determine the probate estate of a decedent is to take all known assets of the decedent, then exclude (1) all joint tenancy property, (2) all assets with a beneficiary designation (other than to the decedent’s estate), such as life insurance, IRA, pension/profit sharing, and payable-on-death accounts, (3) any assets in trust and (4) other property passing by contract or operation of law. The remaining assets, if any, are the probate assets of the decedent.

Probate generally involves paperwork and court appearances. Any fees and court costs are paid from estate property, reducing the amount which would otherwise go to the decedent’s beneficiaries. Formal court-supervised probate can be a costly, time-consuming process. In many cases, the less formal and simple “Independent Administration” can be used to streamline this process. The cost of probate is either set by state law or by practice and custom in your community.