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What is Probate?



Probate is defined as the court-supervised legal process during which title to a decedent’s estate property is transferred to the decedent’s beneficiaries. The probate court is the entity charged with making determinations during this process. A decedent’s surviving family member(s) are the parties who tender the decedent’s will to the probate court to undertake the probate process. The determinations made during probate ordinarily include determining a will’s validity, gathering and marshaling estate assets, paying debts, claims, taxes, costs, and expenses associated with administration of the will, and distributing any remaining assets to beneficiaries designated for their receipt.

Costs of Probate

The probate process comes at a cost. That financial cost is often set by state law or alternatively, by the customary practice or procedures of the local jurisdiction absent a controlling law. The usual cost associated with probating an estate ranges from 3-7% of estate value. In addition to the financial costs associated with probate, there is an element of time costs required. The probate process can be time-consuming. Finally, there is a cost in terms of lost privacy for the decedent over his financial affairs and personal business.

Advantages of Probate

Still, probate is deemed an overall advantageous process because of the probate court’s supervision over the estate administration and proceedings. There is comfort in the body of probate laws and in having applicable guidelines. This holds particularly true in situations where creditors make competing claims, a party challenges a will, or a dispute arises over a will provision.

Testate Succession

If a decedent dies having a will in place, the person is deemed to have died testate. It is the role of the probate court to make a determination whether the decedent’s will is valid, to hear objections, if any, made to the will, to order estate creditors to be paid, and to supervise the probate process so estate property is transferred and distributed pursuant to the directives set forth in the will. In a testate situation, a decedent’s estate is distributed pursuant to the directives set forth by the decedent herself in her will, after payment of debts, taxes, and costs of administration are first handled, of course.

Intestate Succession

If a decedent dies without having a will in place, then she is said to have died intestate. In such cases, the probate court must appoint a person to be in charge of receiving all claims made against the estate, to pay creditors, and to distribute any and all remaining estate property pursuant to the laws of the state in which the decedent resided at the time of her death (which is the governing forum). In an intestate situation, a decedent’s estate is distributed to her beneficiaries pursuant to plan set forth under state law for estate distribution.