What is Probate?

The Probate section of FindLaw’s Estate Planning Center provides an overview of the legal process in which property is transferred after a person’s death — a process known as “probate” — and legal issues related to the collection, management, and distribution of an estate.

Probate is a court-supervised process designed to sort out the transfer of a person’s property after they have died. Some property passes automatically to another party upon death. Certain trusts, life insurance policies, and “Totten Trusts” (also called “payable-on-death” accounts) are capable of avoiding probate by making transferring ownership to the beneficiary before death, or automatically upon the creator’s death. Other property that is subject to probate will be examined by the court and granted to the appropriate party.

Probate Basics

You may have heard of “probating a will.” This refers to the situation where a will is presented to the court that fulfils the legal requirements to be upheld as valid. The court then takes into account the direction of the will and, to the extent that it is not overridden by law, divides the property according to the deceased’s wishes.

Probate may be contested or uncontested. In a contested probate there may be a disgruntled party seeking a larger share. In these situations legal and factual arguments are introduced to support or undermine the claims of various parties.

The probate of most estates is uncontested, however. In these cases the property is collected, debts and taxes are paid, disputes are settled, and the remainder of the estate is transferred to the heirs.

Avoiding Probate

Probate is often criticized as being costly and time-consuming. Avoiding probate can ensure that beneficiaries receive their benefits more quickly and that less is lost to administrative and other expenses. As a result many methods have been developed to try to avoid probate.

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