Using a Last Will & Testament (Will) as your primary estate planning tool means that your estate will go through probate upon your death. It is important to note, however, that the only assets that must go through probate are assets that you own that are not in a living trust (more on living trusts later) and do not have a joint owner or a named beneficiary. Although the probate process is quite complicated and time consuming for the executor, it is important to understand that the purpose of probate is to provide some measure of protection for your beneficiaries.

Phase 1 of Probate: To initiate the probate process, your named executor will have to make at least one appearance at the probate office to officially "qualify" and be "sworn in" as executor. Once qualified, your executor is accountable to the probate court and is required to prepare and file various legal and financial documents, including a detailed initial inventory of your estate and detailed annual accountings showing everything coming in to and going out of the estate. During the initial phase of probate, the executor must see to it that all your assets are accounted for and that any valid debts, expenses, and taxes are paid. There are limitations during this initial probate phase as to how much the executor may distribute as support to your spouse and/or minor children. After at least one year from your date of death (and often significantly longer), the Executor may distribute your remaining assets either:

• (a) to the beneficiaries you have named;
• (b) to the trustee named in your Will (if your Will has testamentary trust provisions, typically because your beneficiaries are under a specified age), to be held and administered according to the testamentary trust provisions set forth in your Will and subject to ongoing probate; or
• (c) to the trustee named in your Living Trust (if you have a Living Trust) to be held outside of probate and administered according to the terms set forth in your Living Trust, free of any court supervision.

Phase 2 of Probate: If your Will has provisions for the creation of a testamentary trust upon the conclusion of the initial phase of probate, then the testamentary trustee named in your Will is accountable to the probate court and, just like the executor, is required to prepare and file various legal and financial documents, including a detailed initial inventory of the trust and detailed accountings showing everything coming in to and going out of the trust every year. During this second phase of probate, the trustee must see to it that all trust assets are accounted for and that any valid debts, expenses, and taxes are paid from the trust when due. Upon the occurrence of a pre determined event (typically a beneficiary reaching a specified age), the trustee may then terminate the trust by distributing all remaining assets to your named beneficiaries.

For Additional Information:

Why Most People Want to Avoid Probate
What is a Revocable Living Trust?
How Does a Revocable Trust Avoid Probate?
What About Irrevocable Living Trusts?
Choosing a Trustee
Avoiding Estate Taxes
Estate Planning Glossary