What is Probate?

“Probate” refers to the process of distributing your assets after you pass away. It is done through the county probate court. The court appoints a “personal representative” (formerly called an “executor”) for the estate and admits the will, if any. The personal representative must then gather the assets, pay the bills, notify creditors, publish notice in the newspaper, and distribute the estate to the beneficiaries under the will (or heirs if there is no will).

Probate takes a minimum of six months.

Property that is titled only in the decedent’s name is what comprises the probate estate. Other assets do not pass through probate. Examples of what does not pass through probate include the following:

  • Assets held in trust pass to the trust beneficiaries
  • Real estate where the owners have a “Lady-Bird Deed” (see Lady-Bird Deed article for details)
  • Real estate that is owned as “Joint Tenants with Right of Survivorship” passes immediately to the survivors upon any joint owner’s death
  • Bank accounts and investments with joint owners pass directly to the survivor.
  • Bank accounts and investments with “Transfer on Death” (TOD) or “Pay on Death” (POD) designations pass automatically to the designated beneficiaries
  • Life insurance, IRAs, 401(k)s, and annuities automatically pass to beneficiaries, unless none are named.

Many people believe that by having a Will they will avoid probate. While a Will may make probate easier, it does not avoid probate. A living trust, on the other hand, can avoid probate if the trust is properly funded.

Rysso & Wingfield, PLLC can help with the probate process. We will file all necessary forms for you, help gather information, and complete the process with a minimum of effort from you.