What Does "Probate" Mean?
Probate can be simply described as a means of transferring title to property. Obviously, once a person dies, that person is no longer able to transfer title to property titled in their name. Probate is a procedure for transferring title to the decedent's property to the persons entitled to it.
It therefore follows that only property titled in the decedent's name alone is a part of the decedent's probate estate and subject to probate. For example, if real estate is owned jointly with rights of survivorship, the real estate does not have to be probated because it passes directly to the survivor because of the nature of the deed. Likewise, a jointly held bank account with the right of survivorship passes directly to the survivor according to the contract with the bank with no probate being necessary. The beneficiary of an insurance policy receives the proceeds without those proceeds being subject to probate because ownership is determined by the insurance contract. An automobile owned in the decedent's name alone is an exception to this rule because of a special statute which allows the Secretary of State to transfer title to the heirs if there are no probate proceedings started.
Many people believe that by having a Will they will avoid probate. While a Will may make probate easier, there still must be probate of those items titled in the decedent's name alone. The Will tells the court which people should be entitled to the decedent's estate and probate passes title to those people. A living trust, on the other hand, can avoid probate if all of the decedent's assets are owned by the trust. Upon death, title to those assets pass according to the terms of the trust without need of probate.