Probate is the formal legal process that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to the intended beneficiaries. It is typically initiated by the executor who is named in the will. This person will take the will to the surrogate court and request that the will be given formal legal validity.

Once the will has been probated, the surrogate court will issue a document known as letters testamentary. This document will allow the executor to marshal the assets of the deceased person, pay the required debts, and distribute the inheritances to the heirs.

Yes, you do. Having the will is not enough – it has to be validated through the probate process and letters testamentary issued before the executor can act. In fact, the executor, nor anyone else, should not act to mange the assets of the decedent without probate to avoid unnecessary disputes, errors, extra taxes, and damage to the assets.

If you don’t probate a will, the assets remain in the name of the deceased person. Assets can’t be managed, debts paid, or inheritances distributed. This can lead to loss of value of the assets as they can’t be actively managed, as well as family disputes when inheritances fail to arrive.

Probate can be easy or complex, depending on the circumstances. The surrogate court will require certain documents to be provided to determine who is the appropriate executor and who are the proper heirs. Formal notice must be given to the appropriate parties in an estate case, and proof must be given to the surrogate. During this process, disputes may arise among family members that can be difficult and damaging both to estate assets and family relationships. There can also be important tax issues that impact the inheritance. So, while the process may seem straightforward, it often brings on complicated problems.

Probably not. In some states, probate is a long and costly process. Probate in New Jersey and New York are not difficult enough to make avoidance desireable.

Having said that, there are still reasons to avoid probate through particular types of estate planning. These include placing assets in a revocable living trust, putting real estate and other assets as joint tenants with rights of survivorship, and using beneficiary designations. Once the person has passed away, it is probably too late to avoid probate.
Probate Without a Will