Identification

• Probate is a special type of state court that involves managing the affairs of deceased persons. First, the judge must decide if a will, assuming one is submitted, is valid. To do so, it must reasonably believe it was the most recent and not invalidated by law. In many states, a will is automatically invalidated if the testator marries or remarries without updating their will. If more than one will is put before the court, the judge must use the available evidence to determine which will be enforced. When no will is present, the probate court carries out the state's laws on intestate succession, which simply refers to the fact that there is no will or "testament" to otherwise provide guidance.
  
  

Features

• Only interested parties can come before a probate judge and make requests of the court. To be an interested party, an individual or entity must prove they are either a beneficiaries by virtue of either being mentioned in the will or through right of intestate succession, a creditors by right of a valid claim against the estate or the executor as nominated by the will or appointed by the court.
  
  

Time Frame

• Probate is notorious for being a lengthy, time consuming process. For the most part, this is an intentional, built-in feature of the court, designed to allow protests and claims to rise in response to publications about an individual's death. This actually works to protect the creditors of the estate from losing their claim due to speedy action of the court. Beneficiaries potentially benefit as well by having time to review the actions of the executor.
  
  

Considerations

• The executor of a will can undergo considerable strain if the assets of a will are hotly contested. This person must usually therefore be a competent individual, trusted and highly regarded by the decedent and his family. Sometimes it's a friend or family member, other times a friendly tax or legal professional. If no executor is named in the will, if she is deceased or unwilling to accept the responsibilities, or if no will is entered, the judge will nominate a personal representative, usually a professional associated with the court and familiar with probate proceedings.
  
  

Effects

• Because probate is an extremely public process, requiring publication of assets in local newspapers, many families mindful of their privacy strive to avoid probate. This is done by divesting assets into a living trust or bestowing them to beneficiaries prior to death. It's also possible that avoiding probate increases the estate's options for tax avoidance since there is no judge or trustee overseeing the matter, though, of course, outright tax evasion is always illegal.