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If an individual does not have a properly executed trust, the individual's estate must pass through the probate process in order for the individual's assets to pass on to his or her family.  The court process can sometimes be lengthy and often times unpredictable, and as such many experienced practitioners recommend that their clients avoid probate.  

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If an individual's estate is in probate, the estate will pass in accordance with the terms of the will if the individual had one. However, sometimes there can be bitterness regarding the terms of the will and the will may be challenged by members of the deceased's family, thus leading to complicated and expensive litigation. 

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If an individual's estate is in probate and he or she does not have a will, then the estate passes in accordance with prescribed laws stating which family members are to receive which assets.  This can sometimes lead to shock and may be in conflict with what the deceased would have actually wanted.  For example, an individual may want to leave her entire estate to her spouse, but under the law only a portion of her estate goes to her spouse. 

 

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