What is Probate?

Probate can be simply described as a means of transferring title to property. Obviously, once a person dies, that person is no longer able to transfer title to property listed in their name. Probate is a procedure for transferring title to the decedent's property to the persons entitled to it.

It therefore follows that only property titled in the decedent's name alone is part of the decedent's probate estate and subject to probate. Many people believe that by having a will they will avoid probate. While a will may make probate easier, there still must be probate of those items titled in the decedent's name alone. The will tells the court which people should be entitled to the decedent's estate and probate passes title to those people. A living trust, on the other hand, can avoid probate if all of the decedent's assets are owned by the trust. Upon death, title to those assets pass according to the terms of the trust without need of probate.