Probate is the legal process through which the court makes sure that after you die, your will is legally valid, your debts are fully paid, and your assets are distributed according to the instructions in your will.

The probate process is necessary for a simple reason. If your name is on the title of an asset, and you die, probate is the only legal way to take your name off the title of an asset and put on the new owner's name. In most states a will not is not enough authority to retitle assets or release account balances. Only a court can do that. If you have a will, your family will not be able to change titles, after your death, without a court order. And this can only be done through probate court.

Not everything you own will automatically go through probate. Jointly owned assets that transfer to the surviving owner do not go through probate. Nor do assets that have a valid beneficiary designation (like an insurance policy). But things can still go wrong, and your assets may not be dealt with as you planned. Of course, assets in a Living Trust do not go through probate.

Probate doesn't happen automatically. The executor of your will must petition the court for probate proceedings to begin. At the first hearing, the judge will validate your will. Your executor then must choose an attorney to handle the case. Your executor will now make a list of all your assets, with formal appraisals. At a second court hearing, the judge will order that all your debts be fully paid, including all probate expenses. If there is not enough cash in your accounts to cover the expenses, the judge can order assets to be sold. Your remaining assets will then be distributed according to the terms in your will. Subsequently, the executor is released from his or her duties, and your file is closed.

When you set up a Revocable Living Trust, you transfer ownership of your titled assets (home, other real estate, bank accounts, stocks, bonds, etc.) from your individual name to the name of your Living Trust, which you yourself control. Technically, you no longer own anything, because everything is in the name of your Trust. Therefore, there is nothing for the courts to control when you die, or if you become incapacitated.

The advantage of having a living trust is that you do not lose control of your assets at any time. You can continue to do everything you did before, including buying and selling assets. You can make changes or even cancel your Trust. Nothing is different but the names on the titles.

To easily create your own living trust without a lawyer, CLICK HERE.