What is probate anyway?

It helps to have the vocabulary straight.  In general, “probate” is the legal process of winding up the affairs of someone who has passed away.  The bundle of assets and liabilities a person leaves behind is often referred to as an “estate”.  The person who passed away is often referred to as the “decedent”.

An estate is generally composed of:

  • Liabilities-debts owing by the decedent
  • Non probate assets-assets that have a valid beneficiary designation, such as real property/accounts held with the following designations: JTWROS (joint tenants with rights of survivorship), TOD (transfer on death), or POD (payable on death), and such as retirement accounts and life insurance with named beneficiaries
  • Probate assets-assets that do not pass by beneficiary designation, or which do not have valid beneficiary designations

Probate generally consists of determining the assets and liabilities of a decedent and the value of those assets and liabilities, determining who is the appropriate recipient of the assets (creditors, or will beneficiaries, or intestate heirs), delivering and perfecting title of the assets to the beneficiaries (via probate of a will if necessary, or possibly via an intestate administration if there is no will, or possibly via a probate alternative if no probate is necessary, irrespective of whether there is a will).

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