Chapter 29: Probate
A Quick Primer on How it's Done

We all know about traffic court and criminal court and small claims court. But they don’t do TV shows about probate court. What is this institution that most of us can live without but not die without?

Probate (i.e., “probate of the will” or “admitting the will to probate”) is the court-supervised legal procedure that determines the validity of your will.

The word “probate” is also used to mean “probating your estate.” In this sense, probate is the process by which assets are gathered, applied to pay debts, taxes, and expenses of administration, and distributed to those designated as beneficiaries in the will. The purpose of probate, put bluntly, is to take the ownership of your assets out of your dead hands and put them into those of a living person or institution.

Even more than most law, probate law varies by state – but which state’s law applies? If you have a second home, or winter home, your will will be probated in the state of your primary residence. But any real estate you own in another state must go through probate in that state, unless it’s jointly owned or held in a trust. In that case, the property passes immediately to the co-owner, avoiding probate entirely. Since real property must go through probate in the state in which it’s located (even if you didn’t live in that state), you should make sure your will meets the requirements of that state. If it doesn’t, the real estate may pass as though you’d died without a will.