What is probate?

When a person dies intestate (without a will) in the United States, all their assets/property pass directly to their spouse.  Probate is not needed in this case.  For those who are unmarried or who have a will which indicates the spouse should not receive all assets or property, the will goes to probate.  The first step is to decide an executor of the will (if one is not already named).  The probate will decide this.

If any property or monies are already contracted to someone or something (such as an insurance policy which must be fulfilled or a bank which owns a loan ‘payable on death’), those assets will pass directly to the party owed them without entering probate.  Some people will set up their property/assets through a living trust, which also allows the property to avoid entering probate.  If you want to avoid probate with your assets after your death, you will need to have a named beneficiary for every single asset.  Do not name contingent beneficiaries – this will send the proceeds into probate.  Using life insurance policies, filing for joint tenancy, or creating a savings account (with another named person) are other ways to avoid probate.  If you are hoping to pass along your estate to heirs, look into credit shelter trusts to avoid as many estate taxes as possible.