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Probate is the formal, court-supervised legal process that gives an executor the authority to manage a deceased person’s estate. It is necessary to officially validate the decedent’s will, ensuring it is their final authentic testament. The process provides a structured forum to notify creditors, pay final debts and taxes, and resolve any disputes among potential heirs. Ultimately, probate is required to legally transfer the title of assets from the deceased’s name to their rightful beneficiaries with a clear title.

A probate lawyer is a legal professional who guides the executor or personal representative through the complex court procedures of settling an estate. They are responsible for filing the petition to open probate, proving the validity of the will, and helping to inventory and appraise the estate’s assets. The lawyer assists in notifying heirs and creditors, paying final bills and taxes, and drafting all necessary legal documents for the court to approve the final distribution of the assets to the designated heirs.

The primary difference is their relationship with the court system. A will is essentially a set of instructions for the probate court; it has no legal power until the court validates it, meaning a will guarantees the probate process. A living trust, however, is a separate legal entity created to own assets. Because the trust, not the individual, legally owns the property, those assets are not part of the deceased’s personal estate and therefore do not need to go through the court-supervised probate process for distribution.

A living trust allows you to avoid probate by changing the legal ownership of your assets during your lifetime. When you create the trust, you transfer the title of your property—like your house or investment accounts—from your name into the name of the trust. Upon your death, you technically don’t own these assets anymore. The successor trustee you appointed simply steps in to manage and distribute the assets according to your instructions, completely bypassing the need for court intervention.

Assets that are titled exclusively in the deceased person’s name without a co-owner or a designated beneficiary are typically required to go through probate. This includes real estate held as sole property, bank accounts with no “payable-on-death” designation, and personal property like cars registered only to the decedent. Assets that avoid probate include those held in a living trust, property owned in joint tenancy with rights of survivorship, and accounts with named beneficiaries, like life insurance policies.