What is Death Probate?

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  • Written By: DM Gutierrez
  • Edited By: Lauren Fritsky
  • Last Modified Date: 13 October 2019
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Death probate is the process through which possessions are distributed to others in a will after the death of the property-holder. This property can include money in bank accounts, shares in businesses and real estate property such as homes or land. Savings bonds and any livestock or pets can also be included in the estate. A predetermined executor usually acts as the death probate administrator, though other arrangements may be made by the probate court. Sometimes estate holders take legal steps before death to avoid probate proceedings, and some property is not subject to death probate.

An executor is typically named to carry out the procedures of probate. This executor can claim an appropriate fee for keeping accounts and disbursing money or property to the beneficiaries of the estate. If the deceased has not chosen an executor beforehand, a probate court usually assigns a responsible person or a group to execute the death probate conditions.

Before possessions can be distributed among beneficiaries, assets are typically gathered together and recorded. These assets are first used to pay off any taxes or debts that may be outstanding. If physical assets do not have to be liquidated to pay off owed amounts, they can be distributed to the people designated in a will in kind. This means a beneficiary may receive a car or a summer home through death probate instead of cash from the sale of the deceased possessions.


Probate can be a lengthy process, subject to the laws and regulations of the particular jurisdiction in which the deceased resided. Due to this, some people take steps during their lifetime to circumvent or eliminate the need for probate. A typical solution is to institute a living trust, detailing to whom property will pass if the owner dies.

A living trust is one method to avoid the probate process, but it can be as costly and time-consuming as death probate. When someone sets up a living trust, he or she must put the transferable assets into the trust, and a trustee must administer the trust just as an executor administers a will. The trustee can charge an administration fee, and the liabilities of the trust such as taxes and debts will apply the same way they do for a probated will.

Some financial assets that are usually exempt from probate include life insurance payouts and retirement benefits that have a designated beneficiary. Homes, real property, and monies or stocks that are owned jointly by spouses or partners are generally not subject to the death probate process.



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