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What is Probate?

What is Probate vs. Probate Court

Navigating Probate Courts vs. Probate

Understanding the legal process surrounding wills, estates, and asset distribution after someone’s passing involves familiarity with probate courts and probate itself. While often used interchangeably, there are distinct differences between probate courts and probate. In this guide, we will explore the differences as well as clarify their roles in the estate administration process.  In addition, we will shed light on the importance of each in ensuring the smooth transfer of assets.

Understanding Probate vs. Probate Court

In essence, probate legally verifies a will. Probate doesn’t always involve probate court. This can happen for several reasons: For instance, if someone had a small estate and the estate is below a certain value.  This may qualify for a simplified probate procedure or may be exempt from probate altogether.

Probate typically goes to probate court when there is a dispute over the validity of the will. In addition, if there are disagreements among beneficiaries or if there are complex issues that need legal oversight.

Here are some common reasons why probate might go to probate court:

Disputed Wills:

If there are disputes regarding the validity of the will, witness signatures, its interpretation, or if there is  allegations of undue influence (or lack of capacity) when the will was created.

No Will (Intestate Succession):

When someone dies without a will (“dying intestate”), the estate may need to go through probate court to determine how assets will be distributed according to state intestacy laws.

Complex Estates:

Estates with significant assets, debts, or complex family situations may require court supervision to ensure proper administration and distribution.

Minor or Incapacitated Beneficiaries:

If beneficiaries are minors or incapacitated, the court may need to assign someone to oversee the management of their inheritance.

Creditor Claims:

Probate court may handle disputes or claims by creditors against the estate, ensuring that debts are paid appropriately.

In these situations, probate court provides a forum for resolving disputes, ensuring legal compliance, and overseeing the proper administration of the estate.

The Role of Probate Court With a Will

Initially, the probate court confirms the will’s validity.  This would include checking signatures, debts, and beneficiaries. Probate court oversees this process to ensure alignment with the law as well as ensuring proper execution of the deceased person’s wishes. Having a will simplifies this process.  A will allows the court to follow the instructions outlined in the document securing your wishes are followed. Probate court, as the specific judicial body, administers the probate process (death settlement) and ensures compliance with state requirements.

Steps to the Probate Process Without a Will

    1. Appointment of an Administrator: The probate court appoints an administrator, typically a family member or other interested party, to manage the estate.
    2. Identification and Inventory of Assets: The administrator identifies and inventories all assets owned by the deceased, including real estate, personal property, bank accounts, investments, and any other assets.
    3. Notification of Creditors: The estate notifies creditors and other interested parties of the death, providing them an opportunity to file claims against the estate for any debts owed.
    4. Payment of Debts and Taxes: The administrator utilizes estate funds to settle outstanding debts, including funeral expenses, taxes, and other obligations.
    5. Distribution of Remaining Assets: After settling debts and taxes, the administrator allocates the remaining assets to heirs according to state intestacy laws. This usually entails distributing assets to surviving spouses, children, and other close relatives in a predetermined order of priority.
    6. Final Accounting: The administrator compiles a final accounting of the estate’s assets, expenses, and distributions for review and approval by the probate court.

Exploring Probated Assets

If you provide a legal will, not everything in that will has to go through probate. However, even after a will has been verified, the following items always have to go through probate.

Individually-Owned Assets

Probate Court must evaluate money, belongings, and property owned solely by you. Officials will inspect your personal bank account if you are married but maintain separate bank accounts.

Items Without a Beneficiary

The most common reason major assets lack a designated beneficiary occurs when your primary beneficiary passes away before you do. To safeguard that your beneficiaries can still receive these assets, remember to update your will. Furthermore, regularly evaluate and revise your will.  After significant life changes to determine whether you wish to add new beneficiaries or remove existing ones. This proactive approach helps prevent confusion or disputes during the probate process.

Property Not Mentioned in Will

Furniture, vehicles, and family heirlooms not mentioned in your will must go through probate as well. Typically, these are left to your named beneficiaries as well, but not always. Again, it’s important to be specific if you have strong preferences about where your belongings end up.

Non-Probated Assets: An Overview

On the other hand, not everything has to go through probate. Examples of things that do not have to go through probate include the following.

Joint Property and Bank Accounts

If you share money or property with a spouse, you cannot include it as a whole in your will. As a result, it bypasses probate. If you wish to leave your portion of the money to someone specific, you must either trust your spouse to give it to them or create separate accounts.

Payable-On-Death Items

Payable-on-death items, such as life insurance or retirement funds, are separate from your will. You should name a beneficiary specifically for POD benefits within the administration to make the transition to your beneficiaries seamless.

Items with Beneficiaries

Items specifically mentioned in your will go through probate in the sense that Probate Court makes sure they are given to the correct people. However, Probate Court does not have the authority to take those items from your designated beneficiaries.

Living Trust

A living trust is separate from a will and does not go through probate. Rather, you grant another individual legal permission to control your funds in the event you become unable to.

Steps for Filing Probate With or Without a Will

    1. Gather Necessary Documents: Collect the deceased person’s will, death certificate, and any relevant financial records.
    2. File a Petition: Submit a petition to the probate court in the county where the deceased person lived, requesting to open probate proceedings.
    3. Notify Interested Parties: Notify heirs, beneficiaries, and creditors of the deceased person’s death and the probate proceedings.
    4. Appointment of Executor: The court will appoint an executor or personal representative to manage the deceased person’s estate.
    5. Inventory Assets: The executor will inventory and appraise the deceased person’s assets, including property, bank accounts, and investments.
    6. Pay Debts and Taxes: Use estate funds to pay off the deceased person’s debts, including funeral expenses, taxes, and outstanding bills.
    7. Distribute Assets: After debts are paid, distribute the remaining assets to heirs and beneficiaries according to the terms of the will or state law.
    8. Final Accounting: Prepare a final accounting of the estate’s assets, expenses, and distributions for approval by the probate court.
    9. Close Probate: Petition the court to close probate proceedings once all debts are paid and assets are distributed.
    10. Obtain Court Approval: The court will review the final accounting and approve the closing of probate, officially closing the estate.

Following these steps guides you through the probate process, ensuring the distribution of the deceased person’s assets according to their wishes or state law.


In summary, probate verifies the validity of wills and supervises the distribution of assets. The probate court ensures legal compliance, simplifying the process for testators and beneficiaries alike. Clearly specifying beneficiaries helps to avoid disputes during the probate process. Understanding which assets must go through probate and which do not can streamline asset distribution. By following the simplified steps outlined for the probate process, individuals can ensure the efficient transfer of assets.

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