What is Probate?

Something I am asked regularly is “what is probate?”  Often, that question is followed up with “how do I avoid probate?”  I always find it interesting when someone asks me the second question first, as I’m not sure why someone would want to avoid something without knowing what it is.

When one has passed away with assets to their name, the survivors are left to go through the court process to have an appropriate person appointed to transfer these assets to the rightful people, commonly referred to as the “beneficiaries.”  The act of going to court to appoint to the appropriate person, notifying the next of kin, filing estate tax returns and overall winding-up the affairs for the deceased’s estate  is what is commonly referred to as Probate.

Is Probate something which should be avoided?  The answer to that, much like the answer to many questions that involve legal ramifications is: “it depends.”  The factors that go into deciding whether or not probate is something which should be avoided are usually: