What Is Probate? Understanding the Probate Court System

Watch Carina de la Torre explain what probate is and how the probate court system works on YouTube.

What is probate?

Probate is a court system. Every state has its own version. It's a set of rules that are followed for people who don't have estate plans or for people who have incomplete estate plans, the probate system will gather assets, identify beneficiaries, deal with creditor claims, and ultimately pass anything that's left to the beneficiaries.

I describe probate as a washing machine for title. Things go into the probate process in the name of the person who passed away, and they come out in the name of the beneficiaries, and in the meantime, all sorts of important things happen. Estate plans are identified, beneficiaries are identified, creditors are handled, assets are gathered and protected, and ultimately, the assets that are left over are distributed to the beneficiaries.

Another important thing that happens in probate court is guardianship. If a parent passes away with minor children, the probate court will appoint guardians over the minor children. If you're incapacitated or disabled, a probate court can also appoint a guardian over you. This Guardian will have the ability to make legal, financial and medical decisions on your behalf.

Probate is like any other legal process. Your family members will get a case number, and the estate will work its way through the system until it's completed. It's just like any other court proceeding where there is a judge making decisions in a public proceeding, probate is not a must when it comes to an estate plan, a good estate plan can and does avoid probate to the extent that you may have completed an online estate plan, or you have an incomplete estate plan, probate is going to fill in those gaps. But a good, complete estate plan can avoid probate entirely.