Probate is the court-supervised process where the executor named in your Will or an administrator appointed by the court if you have no Will, files a petition with the court seeking official appointment as the executor/administrator of your estate. Once the executor/administrator is appointed they will take charge of your assets, identify and inventory your property, pay your debts, organize your assets for distribution, identify your heirs and, after receiving court approval, distribute your estate to your beneficiaries.
Simpler procedures are available for transferring assets to a spouse or registered domestic partner, or for handling small estates with assets under $100,000.
The probate process has advantages. The probate court is accustomed to resolving disputes about the distribution of assets fairly quickly through a process with defined rules. In addition, the probate court reviews and supervises the executor's handling of the estate, which can help protect the beneficiaries' interests. It is often a better process if the assets of the estate are limited, if the nature of the assets is complex or confusing, or if it is anticipated that there will be conflict amongst the beneficiaries regarding the administration of the estate or the distribution.
There are also a number of disadvantages to the probate process. The cost of probating an estate as opposed to administering a trust can be significantly greater because lawyer's fees and executor's commissions in a probate are based on a statutory fee schedule which increases as the size of the estate rises. Probates are also public so your estate plan and the value of your assets will become a matter of public record. Time can be a factor as well since a probate proceeding generally takes longer than the administration of a living trust.
You should carefully discuss such advantages and disadvantages with an estate planning lawyer before making any decisions since every factual situation is different.
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