The term "probate" refers to a "proving" of the existence of a valid Will, or determining and "proving" one's legal heirs if there is no Will. Since the deceased can't retain property, probate is the process that determines who gets his or her property.

The primary function of probate is to transfer title of the decedent’s property to the heirs and/or beneficiaries. Probate usually is not needed if there is no property to transfer. But another function of probate is the collection of any taxes due because of the deceased's death or the transfer of property.

The probate process also provides mechanisms for payment of outstanding estate debts and taxes, for setting a deadline for creditors to file claims (foreclosing the possibility that old or unpaid creditors will haunt heirs or beneficiaries), and for the distribution of the remainder of the estate to the rightful heirs.

Generally probate or, in the case of smaller estates, a less formal procedure under the supervision of the probate court, is necessary before the deceased's property can be legally distributed.

Even when a Will is present, a court needs to allow others to object to the Will, and if there are objections, to determine if the Will is valid. The process eliminates any possibility that:

1. The Will was the result of fraud, mistake or “undue influence;”
2. The Will was made at a time when the deceased was not mentally competent to make a Will;
3. There was a later Will which, if valid, would replace the older Will;
4. The Will was not properly executed;
5. The so-called Will is a forgery;
6. The Will is not fully valid for some other reason, such as a pre-existing contract;
7. Other claims against the deceased’s estate impact what the beneficiaries under the Will would receive.

For example, if the deceased owned real estate in his own name, no knowledgeable outside person would accept title to the property and no bank would approve a mortgage, unless the estate went through probate so "clear title" could be given the new buyer. Similarly, few outsiders would enter into any other transactions involving the deceased's property before the Will is "admitted to probate" and/or someone is lawfully appointed to act for the estate.

The way to avoid probate is through the use of a Living Trust. Please see the article in this series entitled “What is the relationship between a Will and a Trust?” for more specific information on trusts and how to use them.