Probate is the legal process of transferring a deceased person's property to heir and beneficiaries, determining the validity of the will, and meeting the financial responsibilities of the estate. Depending on the property an individual leaves behind, the family circumstances, and the specific arrangements an individual made for the disposition of his or her property at death, probate can be a more or less burdensome task. It can be especially burdensome if there is a lot in dispute in probate court.
For those who have no estate plan, the property they did not make arrangements for passes on according to established rules laid out in state statutes, and this requires going to probate court to have the property properly disposed. For those who have done some estate planning and have some documents in place, whether or not they need to go to probate court depends on the plan they set up and the amount of property they leave behind.
Typically, those of modest wealth who have not planned to avoid probate will leave behind an estate that must go to probate court. This may not necessarily be a bad thing, but probate is a public proceeding, does involve costs, takes some time and can result in protracted disputes in some cases. Avoidance of probate, for some people, may therefore be a desirable thing, and a plan specifically tailored to this goal can be set up.
Those who want to avoid having their estate go through probate must see to it that all their property passes to others outside probate. This can be done by making use appropriate titling and special types of contracts with beneficiary designations, as well as trusts. It can also be done by means of lifetime gifting. Often those who have the goal of avoiding probate will use a combination of strategies.
Avoiding probate isn't necessarily the ultimate goal of estate planning. A lot of other factors should be considered aside from staying out of court. Working with an experienced attorney helps ensure that one sets up an estate plan that takes into account one's unique circumstances and goals.