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What is Probate Anyway?

| Feb 28, 2024 | Probate

Probate is the legal procedure for gathering the property of a deceased family member, settling debts, and distributing the remaining assets. Determining if probate is necessary can be confusing, but probate is only required for property solely in the decedent’s name.

To better understand this concept, let’s consider an example. A couple jointly owns a bank account. If one spouse passes away, the surviving spouse becomes the sole owner of the account, according to the bank’s agreement with the couple. However, if the surviving spouse passes away with sole ownership of the account, the account must go through probate because no other owner is listed. The property held solely in the surviving spouse’s name must be transferred to the surviving spouse’s heirs through probate.

A common misconception is that having a will can help you avoid probate. While a will can be useful in outlining where your property should go, it does not transfer ownership. Even if you have a will, your estate will still need to go through the probate process. To avoid probate a living trust must own the decedent’s assets.  Title to those assets then passes according to the terms of the trust without the need for probate.


Jesse Bergwerff