Probate is simply the legal process necessary to change the ownership of assets following the death of the owner.  Probate is the court-supervised administration of your estate and generally has three purposes.
  • Marshall all assets
  • Pay bills and resolve disputed creditor issues
  • Oversee the distribution of assets
The "death probate" process begins with the filing of a lawsuit in the probate court seeking the appointment of a personal representative. 

If there is no will, any assets remaining after the payment of court costs, attorney and other fees, and debts are distributed in accordance with state law.

If there is a will, and if the court decides that the will is valid, the remaining assets are distributed as provided in the will. 

Many people dislike the probate process because of the length of time required, the expense, and the loss of privacy.  The probate lawsuit can last from several months to many years, during which time the assets in the estate may be frozen.  There are some special allowances available for a surviving spouse and other family members, but the allowances often seem meager, at best.

The expenses include attorney fees and personal representative fees which can easily total more than 4% of the gross value of the estate and also include court costs, appraisal fees, newspaper publication fees, and other fees and expenses.

Because all papers filed in the probate case, including a description and appraisal of all assets, are public records, the family loses much of its privacy.

As noted in GENERATIONS -- Planning Your Legacy,  probate is often described as "the lawsuit you bring against yourself with your own money to benefit your creditors."