Probate” is a legal term referring to the state process for distributing a person’s estate after their death.  The probate process becomes necessary if the estate holder becomes deceased without a valid will.  In that case, a fiduciary overseer will be appointed to obtain title to the deceased person’s assets, and transfer title to the appropriate beneficiaries.

Some property and assets usually subject to the probate process can include:

  • Financial accounts, such as bank account funds, savings accounts, etc.
  • Personal property items (clothing, furniture, jewelry, books, etc.)
  • In some cases, real property such as a home or other property interest
  • Stocks and other securities

Thus, a person’s entire estate can be subject to probate if they didn’t leave a valid will with instructions on how the property should be distributed.  Property that is held jointly between the deceased person and another party isn’t usually included in the probate process.

What are Some Reasons to Avoid Probate?

Generally speaking, it’s considered advantageous to avoid the probate process.  Most estate planning efforts would recommend having the person’s estate be distributed according to instructions in a will, rather than relying on the state judicial probate procedures. 

This is because state laws can sometimes yield inconsistent or unfavorable results in terms of the distribution of the estate property.  Most state laws give priority to the surviving spouse and the children of the deceased in terms of receiving property.  Thus, an interested beneficiary may run up against some challenges if, for example, they would like to receive property that the deceased holder may have promised them during while still alive.

In addition, the probate process can sometimes be lengthy and generally takes a while to be fully completed.  In comparison, having the property distributed through a will may allow the deceased person’s loved ones to gain access to their shares more efficiently. 

What if I Have a Dispute During the Probate Process?

Challenging the probate process can sometimes raise additional legal difficulties.  However, it may be necessary if you feel that you have a valid claim and if you feel that you have enough evidence to support your claim.

If you have a complaint regarding the way that property of a deceased loved one or friend is being distributed through the probate process, you may be required to:

  • May need to explain your interest in the deceased person’s property
  • Support your claimed relationship to the deceased person (for example, through a birth certificate, marriage certificate etc.)
  • Explain why you’re entitled the property distribution, or why the judge should make an adjustment to the distribution order.

Making such challenges and raising these legal issues can also affect other people, such as the close friends and relatives of the deceased person.  Therefore you should also be considerate of the needs of other beneficiaries in such situations.  It also helps if you have any statements or documents from the deceased person in support of your claims. 

Do I Need a Lawyer for Help With Probate issues?

The probate process can generally be helpful, but it can also pose some legal challenges as well.  If you have any questions, or need help with the probate process, you may wish to contact a qualified probate lawyer in your area for advice.  Your attorney can help explain how the laws in your area work (the probate and succession rules can vary by state).  Also, if you’re considering your own estate, you may wish to hire a lawyer near you for help with estate planning issues as well.