What Is Probate?

Probate is simply the Latin word for prove, which means that the estate probate process is the process by which your will is brought before a court to prove that it is a valid will. The courts charged with this responsibility are generally known as probate courts which, depending on where you live, may actually supervise the administration or settlement of your estate.

The probate process is governed by state statutes that are intended to accomplish three primary objectives:

  1. To preserve estate assets.
  2. To protect the rights of creditors in the payment of their claims before the estate is distributed to the heirs.
  3. To assure that the heirs receive their inheritance in accordance with the terms of the estate owner's will.

Once the estate's personal representative (executor or administrator if the estate owner died without naming a personal representative) is approved by the probate court and posts any bond that is required, the probate process generally proceeds as follows:

The personal representative must "prove up" the will -- prove that it is a valid will signed by the estate owner who was competent and not under duress or influence at the time of signing.
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Notice must be given by the personal representative to all creditors to make prompt claim for any money owned to them by the estate.
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The personal representative must prepare and file an inventory and appraisal of estate assets.
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The personal representative must manage and liquidate estate assets as appropriate to pay all debts, fees and taxes owed by the estate.
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Finally, the remaining estate must be distributed to the heirs in accordance with the estate owner's will (or the state laws of intestacy if there was no will).

It is not uncommon for the probate process to require a year or more and considerable expense before the estate is finally settled. Proper planning, however, can serve to minimize the impact of the probate process on your estate and heirs.

What Steps Can Be Taken to Avoid or Minimize Probate?

Supervision of the estate settlement process by the probate court can result in additional expense, unwanted publicity and delays of a year or more before heirs receive their inheritance. The publicity, delays and cost of probate motivate many people to explore ways in which to avoid or minimize the impact of probating a will, including:

State Statute

If specific requirements are met, many states have made provision for certain estates to be administered without the supervision of the probate court, resulting in less cost and a speedier distribution to heirs.

Form of Property Ownership

The joint tenancy form of holding title to property allows ownership to pass automatically to the surviving joint tenant, who is normally the surviving spouse.

Transfer On Death

Many states have enacted Transfer on Death statutes that allow a person to name a successor owner at death on the property title certificate for certain types of property, including real estate, savings accounts and securities.

Life Insurance

Unless payable to the estate, life insurance proceeds are rarely subject to the probate process.

Lifetime Giving

Gifts given during life avoid the probate process, even if made shortly before death.


A "Totten" trust, which is a bank savings account held in trust for a named individual, can be used to pass estate assets at death outside of the probate process.

A revocable living trust, created during the estate owner's lifetime, can be an effective way to avoid the expense and delay of probate, while retaining the estate owner's control of his or her assets prior to death.

Any potential method of avoiding probate should be evaluated in terms of its income and/or estate tax consequences, as well as its potential impact on the estate owner's overall estate planning goals and objectives.


VSA 2C1.13, 2C1.14 ed. 01-08

VSA, LP The information, general principles and conclusions presented in this report are subject to local, state and federal laws and regulations, court cases and any revisions of same. While every care has been taken in the preparation of this report, neither VSA, L.P. nor The National Underwriter Company is engaged in providing legal, accounting, financial or other professional services. This report should not be used as a substitute for the professional advice of an attorney, accountant, or other qualified professional.