Probate is the process of proving a will is valid and thereafter administering
the estate of a dead person according to the terms of the will. It is a
judicial act or determination of a court having competent jurisdiction
establishing the validity of a will. First the will is filed with the clerk
of the appropriate court in the county where the deceased person lived,
along with a petition to have the court approve the will and appoint the
executor named in the will (or if none is available, an administrator)
with a declaration of a person who had signed the will as a witness. If
the court determines the will is valid, the court then “admits” the will
to probate.

Probate is a general term for the entire process of administration
of estates of dead persons, including those without wills, with court supervision.
The initial step in the process is proving a will is valid and then administering
the estate of a dead person according to the terms of the will. The will
must be filed with the clerk of the appropriate court in the county where
the deceased person lived, along with a petition to have the court approve
the will and appoint the executor named in the will. If an executor is
not named in the will, an administrator is appointed. A declaration of
a person who had signed the will as a witness is also filed. If the court
determines the will is valid, the court then “admits” the will to probate.

Even if there is a will, probate may not be necessary if the estate
is worth no more than a stated dollar value or is small with no real estate
title to be transferred or all of the estate is either jointly owned or
community property. The probate process involves fees set by statute and/or
the court (depending on state laws) for attorneys, executors and administrators,
the need to publish notices, court hearings, paperwork, the public nature
of the proceedings and delays while waiting for creditors to file claims,
whether money was owed or not.

Trusts in which all possessions are managed by a trustee, making lifetime
gifts, or putting all substantial property in joint tenancy with an automatic
right of survivorship in the joint owner are methods of avoiding probate
of assets. Even if there is a will, probate may not be necessary if the
estate is under a defined statutory value with no real estate title to
be transferred or all of the estate is either jointly owned or community
property. Another function of probate is to provide for the collection
of any taxes due by reason of the deceased’s death or on the transfer of
his or her property. Reasons for avoiding probate are the fees set by statute
and/or the court (depending on state laws) for attorneys, executors and
administrators, the need to publish notices, court hearings, paperwork,
the public nature of the proceedings and delays while waiting for creditors
to file claims even when the deceased owed no one.