Probate is a legal process used to transfer assets out of the name of the person who has passed away (the "decedent") into the names of the persons named in the decedent's will ("testate" probate) or, if there is no will, to the persons identified by state statute as the heirs ("intestate" probate). If the decedent does not have any assets in his name alone on the date of death, probate may not be necessary other than to file the estate tax return. However, if the decedent does have assets in his name alone on the date of death, probate will be required to pass those assets to other people.

The probate process is a method by which creditors of the decedent can file claims and, usually, get paid. It can also involve wrapping up a business and satisfying any outstanding business obligations or debts. Many people think if they have a will, their estate won't need to go through probate. This is untrue. A will can only dispose of assets in the decedent's sole name - and if the decedent had assets in his sole name, then the estate must go through probate to get the assets out of his name and into someone else's.

Probate is required for all assets in a person's sole name. So, by definition, it excludes all property with survivorship rights or which is "transferred on death" to someone else.

Examples of probate property:
  • Property held as "tenants in common"
  • Property owned solely by a single individual
  • Life insurance payable to the estate
  • Cars owned solely by the decedent
Examples of non-probate property:
  • Property held as "joint tenants"
  • Life insurance funds payable to a named beneficiary
  • Retirement funds payable to a named beneficiary
  • Payable-on-death checking and savings accounts
  • Cars with "transfer on death" designations
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