What Does Probate Really Mean?

What Happens During Probate?

Probate is a court-supervised process for administering certain assets after someone passes away.

During probate, the court generally oversees the administration of the estate and the transfer of assets that are subject to the process.

Depending on the circumstances, this can include appointing a personal representative to administer the estate, identifying and valuing assets, addressing debts and creditor claims, handling certain taxes and expenses, and eventually distributing the remaining assets to the appropriate beneficiaries or heirs.

Because the court is involved, probate also comes with specific procedures, filings, notices, and deadlines that must be followed.

For families already navigating the loss of a loved one, understanding those requirements can be an important part of determining what needs to happen next.

Does Having a Will Avoid Probate?

This is one of the biggest misconceptions surrounding probate.

Having a will does not necessarily mean your estate will avoid probate.

A will provides instructions about how certain assets should be distributed after your death and can nominate the person you would like to administer your estate. But the will itself does not automatically remove assets from the probate process.

In fact, if assets are subject to probate, the will may become an important part of that proceeding.

If someone passes away without a valid will, probate may still be necessary. Instead of following the person’s instructions in a will, however, assets subject to probate may ultimately be distributed according to California’s intestate succession laws.

That’s why simply having a will and having an estate plan designed to avoid or minimize probate are not necessarily the same thing.

Does Everything You Own Go Through Probate?

No. Whether an asset is subject to probate can depend on what the asset is, how it is titled, its value, and whether another method has been established for transferring it after death.

For example, certain assets may be able to transfer outside of probate, including:

• Assets properly titled in a living trust
• Certain jointly owned property
• Life insurance policies with valid beneficiary designations
• Retirement accounts with designated beneficiaries
• Certain payable-on-death or transfer-on-death accounts

There may also be simplified procedures available for certain estates or types of property that do not require a full probate proceeding.

This is why looking only at someone’s will doesn’t necessarily tell you what will happen to their estate. How assets are owned and titled can be just as important as the estate planning documents themselves.

Where Does a Living Trust Come In?

One reason people create a revocable living trust is to allow assets held in the trust to be administered outside of probate after their death.

When the person who created the trust passes away, the successor trustee can generally step in and begin administering the trust according to its terms. This may involve gathering and valuing assets, addressing debts and expenses, handling tax matters, and eventually making distributions to beneficiaries.

Unlike probate, trust administration is generally not a court-supervised process, although court involvement can still become necessary in certain circumstances.

There is an important catch, though: creating a trust is only part of the process.

Assets generally need to be properly transferred into the trust or otherwise coordinated with the estate plan. Someone can have a beautifully drafted trust sitting in a binder, but if certain assets were never properly addressed, those assets may still be subject to probate after death.

Why Can Probate Take Time?

People are sometimes surprised to learn that administering an estate can take months or longer.

Probate isn’t simply a matter of presenting a will to the court and distributing everything to the beneficiaries. There are procedural requirements that need to happen along the way.

Assets may need to be located and valued. Creditors may need to receive notice and have an opportunity to submit claims. Property may need to be maintained or sold. Tax issues may need to be addressed. Disagreements among beneficiaries or other interested parties can also add complexity.

Every estate is different, which means the length and complexity of probate can vary considerably depending on the circumstances.

Probate Isn’t Just About “Who Gets What”

When people think about estate planning, the focus is often on deciding who should inherit their home, savings, investments, or other property.

But an effective estate plan also considers how those assets will actually get from you to the people you have chosen.

Will they pass through a trust? Through a beneficiary designation? Through joint ownership? Through probate?

Those details can have a significant impact on what your loved ones will need to do after you’re gone.

This is also why estate planning shouldn’t necessarily be viewed as a one-time task. As you acquire or sell property, open new accounts, or experience other major life changes, it can be important to make sure the ownership and beneficiary designations of your assets still coordinate with your overall plan.

A Little Planning Can Create a Clearer Path Forward

Probate isn’t inherently a sign that something went wrong. In some situations, it is simply the legal process required to administer certain assets after a person’s death.

But understanding how probate works can highlight an important part of estate planning: having documents is only one piece of the puzzle.

How your assets are titled, which beneficiary designations are in place, whether your trust has been properly funded, and how all of those pieces work together can determine what your loved ones will face when the time comes.

The more thoughtfully those details are addressed during your lifetime, the clearer the path may be for the people you leave behind.