Probate Definition

Probate is the process of proving a will is valid and thereafter administering the estate of a dead person according to the terms of the will. It is a judicial act or determination of a court having competent jurisdiction establishing the validity of a will. First the will is filed with the clerk of the appropriate court in the county where the deceased person lived, along with a petition to have the court approve the will and appoint the executor named in the will (or if none is available, an administrator) with a declaration of a person who had signed the will as a witness. If the court determines the will is valid, the court then "admits" the will to probate.

Probate is a general term for the entire process of administration of estates of dead persons, including those without wills, with court supervision. The initial step in the process is proving a will is valid and then administering the estate of a dead person according to the terms of the will. The will must be filed with the clerk of the appropriate court in the county where the deceased person lived, along with a petition to have the court approve the will and appoint the executor named in the will. If an executor is not named in the will, an administrator is appointed. A declaration of a person who had signed the will as a witness is also filed. If the court determines the will is valid, the court then "admits" the will to probate.

Even if there is a will, probate may not be necessary if the estate is worth no more than a stated dollar value or is small with no real estate title to be transferred or all of the estate is either jointly owned or community property. The probate process involves fees set by statute and/or the court (depending on state laws) for attorneys, executors and administrators, the need to publish notices, court hearings, paperwork, the public nature of the proceedings and delays while waiting for creditors to file claims, whether money was owed or not.

Trusts in which all possessions are managed by a trustee, making lifetime gifts, or putting all substantial property in joint tenancy with an automatic right of survivorship in the joint owner are methods of avoiding probate of assets. Even if there is a will, probate may not be necessary if the estate is under a defined statutory value with no real estate title to be transferred or all of the estate is either jointly owned or community property. Another function of probate is to provide for the collection of any taxes due by reason of the deceased's death or on the transfer of his or her property. Reasons for avoiding probate are the fees set by statute and/or the court (depending on state laws) for attorneys, executors and administrators, the need to publish notices, court hearings, paperwork, the public nature of the proceedings and delays while waiting for creditors to file claims even when the deceased owed no one.