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Probate is the legal process of paying the deceased's debts, taxes and distributing the estate to the rightful heirs.  Determination of when probate is required is determined on a state by state basis.  Most states allow a certain amount of property to pass free of probate, or through a simplified probate process.  In addition, property that passes outside of your will -- such as assets that are jointly owned or included in a living trust -- is not subject to probate.

Probate usually involves:

  • The appointment of an individual by the court to act as  "executor" of the estate. This person is often named in the will. If there is no will or the executor is unable to perform their duties, the court appoints an administrator, usually the closest capable relative, or the person who inherits the bulk of the deceased person's assets.

  • If a will exists, proving that the will is valid.

  • Identifying and inventorying the deceased person's property.

  • Having the property appraised.

  • Informing creditors, heirs, and beneficiaries that the will is probated.

  • Paying debts and taxes.

  • Distributing the remaining property as the will directs or state law if a will does not exist.

In most states, immediate family members may ask the court to release short-term support funds while the probate proceedings drag on. Eventually, the court will grant the executor permission to pay debts and taxes and divide the rest among the people or organizations named in the will.

Unless the estate has complicated problems, such as many debts that can't easily be paid from the remaining property, probate is generally never good for the beneficiaries since it costs money and ties up assets. 

Whether you spend the time and effort required to avoid probate depends mostly on your accumulated wealth and your state's probate laws..