“Probate” is the court-supervised administration of a decedent's estate. It is an “in rem” proceeding over decedent's property in the state.

    Historically, the term “probate” referred specifically to the narrow process of proving a decedent's will before the court. In modern usage, however, “probate” refers to the entire process of court-supervised estate administration, regardless of whether a decedent died testate or intestate.

    Probate begins with the filing of a petition for probate of decedent's will or for letters of administration if there is no will. Thereafter, estate administration progresses generally through “proving the will” (in testate cases), appointing the personal representative, marshaling decedent's assets, determining and paying decedent's debts and taxes, and transferring title to estate property to the testate beneficiaries and/or intestate heirs at law.

    Whether probate administration is necessary varies depending upon a variety of factors—for example: the form in which decedent held title to property; decedent's marital status at time of death (i.e., whether there is a surviving spouse or registered domestic partner); and the nature and value of decedent's property (both real and personal).

    Not all property in which decedent had an ownership interest is subject to probate administration. In the first instance, a judicial proceeding is required only for property and property interests that decedent owned directly (i.e., held title to) at his or her death. Property owned indirectly (e.g., in a living trust) or that passes by operation of law (e.g., joint tenancy or community property with right of survivorship) or by contract (e.g., insurance proceeds, employee benefits) is not subject to probate (unless, e.g., the insurance policy or contract directs payment of funds to “the estate”).

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