What is Probate?

What is Probate? Probate is the term that refers to the legal process of handling one’s estate once deceased. This process allows the deceased’s heirs to legally take possession of any assets left to them by their loved one. This is also how any creditors of the deceased get paid, and how any remaining assets are distributed. If the deceased party had a Will in place, the beneficiaries of the will receive the assets as requested by the deceased party once the Probate process is complete. If there was no will in place, the Probate process will take place and the remaining assets will be distributed to the deceased party’s heirs per the law governing the state in which the party lived.

When a loved one passes, their property is classified as either probate property or nonprobate property. Probate property typically includes any property owned by the deceased person in their name alone that does not have a named beneficiary, such as real estate and bank accounts or securities accounts with only the deceased party’s name on them. Probate property is required to go through probate court. Increasingly, more people may own a large portion of their property in nonprobate property types. Nonprobate property is property held in a trust, 401(k)s and IRAs, life insurance, pay-on-death bank accounts, transfer-on-death securities accounts, and property held in tenancy with another party. Nonprobate property is not required to go through probate court.

There is, however, an exclusion for smaller estates. The deceased party’s probate property, not including real estate, would not be required to go through probate court if less than $50,000. In that case, the probate property can be obtained by the deceased party’s successors with the use of a Small Estate Affidavit.

The easiest way to avoid the hassle, headache, and expense of the Probate process is to have your estate placed in a trust. With a trust, you are able to add all of your assets, real estate, firearms, and even pets into one Estate Plan so that when the time comes, your heirs and beneficiaries have your wishes already laid out and they are able to avoid going through the court process. If this is something you are interested in, feel free to reach out to schedule a free consult and we would love to discuss your specific needs in detail.