What Is Probate and When Is It Required?

Probate is the legal process that takes place after someone dies, whether or not they had a valid Will. It is a court-supervised process that legally establishes the Will's authenticity, inventories the deceased person's property, pays debts and taxes, and finally distributes the remaining assets to the rightful heirs.

When Is Probate Required?

Probate is required when the deceased person's assets are titled solely in their name and there is no legal mechanism (like a joint account or beneficiary designation) for those assets to pass directly to an heir. These are called probate assets.

Key Reasons Probate is Mandatory

1. To Validate the Will: The court officially reviews and approves the Last Will and Testament, confirming it is the deceased's true, final wishes.
2. To Appoint a Fiduciary: The court officially appoints the Executor (if there is a Will) or Administrator (if there is no Will) to manage the estate.
3. To Clear Title: This is required to legally transfer property (like a house or land) that was only in the deceased person's name into the name of the heir.
4. To Pay Creditors: Probate provides a mandatory window for creditors to come forward and be paid from the estate before the remaining assets are distributed.

When Probate is NOT Required

In many states, probate is not required if the deceased person's probate assets fall below a certain monetary threshold (often called small estate thresholds). Also, if all assets are non-probate assets (see Article 42), the process can be entirely avoided.

Probate can be lengthy and expensive, which is why estate planning strategies often focus on avoiding it.