What is probate?

Everything you need to know about the probate process and how it works

Elissa

By

Elissa Suh

Elissa Suh

Personal Finance Editor

Elissa Suh is a personal finance editor at Policygenius in New York City. She has researched and written extensively about finance and insurance since 2019, with an emphasis in estate planning and mortgages. Her writing has been cited by MarketWatch, CNBC, and Betterment.

Updated September 20, 2021|7 min read

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Probate is the legal process of administering a deceased person’s estate — the collection of everything they owned when they died — which eventually ends when the deceased's property is released to their rightful heirs and beneficiaries. 

People typically write a last will and testament to state their wishes and instructions regarding their estate, and proving the will (verifying that it’s a legitimate document) can also be part of the probate process. But probate can still happen when there is no will and the court needs to decide how to distribute the assets of the deceased's estate to their loved ones.

The probate process involves contacting the local court office and filing papers, or petitions, and it can take a matter of weeks or even years depending on the size of the estate. Most states have different probate procedures, and they usually include at least one way to avoid probate entirely — which can be beneficial to loved ones and family since they may be able to receive an inheritance more quickly.

Key Takeaways

  • Probate differs depending on where you live, and most states allow you to avoid it under certain circumstances

  • You can initiate probate by filing a petition with the court to become the personal representative of the estate

  • Having a will in place won’t help you avoid probate, but the terms can guide the process — and not all wills need to be probated in the first place

What is the purpose of probate?

When someone dies, certain things need to be done, like getting their death certificate or arranging a funeral, and finding out what to do with all of their things — their physical belongings, as well as intangible assets like bank accounts, mortgages, and more. That’s where probate comes in. Loved ones and family typically can’t just descend upon the estate to take what the deceased left behind (even if the will entitles them to an asset) or ignore all the matters a person left unsettled. Probate is a process that provides a guide and framework for settling the deceased’s affairs in an organized legal manner. 

Related article: What to do when someone dies

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Who is in charge of probate and where does it happen?

An executor named in a will usually oversees the probate process, usually by contacting the probate court, which may also be called surrogate's court or superior court, depending on your state. They’re typically delineated by county. 

Some filings and matters can be done completely electronically, but in other cases — especially when there’s a dispute or legal challenge, or the court needs clarification — representatives and beneficiaries may need to physically appear in court in front of a clerk or probate judge. 

When someone dies without a will, a surviving spouse or adult child usually has priority to open a probate matter as the administrator of the estate. Personal representatives of an estate (executors and administrators) can consult with a probate attorney if they need help or legal advice. 

Learn more about an executor vs administrator

Is probate mandatory?

An estate doesn’t always have to go to probate, and this is generally true whether the decedent died testate or intestate (died with or without a valid will).  

Not all wills need to be probated. Whether or not probate is necessary for a decedent’s estate depends mostly on what assets are left behind and their total value. A number of assets don't go through probate. Any of the deceased’s property with a beneficiary designation — whether it’s a bank account, retirement plan, or life insurance policy — can be transferred directly to that named beneficiary. The same goes for property with a transfer-on-death deed and trust assets. (These assets are all examples of what you should never put in your will.)

Learn about what types of assets are subject to probate

Other circumstances when probate may be necessary:

  • The will is handwritten or the terms aren't clear

  • A beneficiary or heir is a minor without a guardian or conservator

  • The court needs to supervise the entire process

  • An heirship hearing is required

  • Probate assets include real estate or land (real property) 

  • The decedent had a very large estate

Avoiding probate

Most people want to avoid probate so that their beneficiaries can receive an inheritance more quickly without getting caught up in the morass of probate, which can potentially take a long time (more on that later). The law in almost every state permits estates to be settled without formal probate. Most states have informal probate procedures, and some states have three or four different ways to settle an estate. The most common probate alternative is using an affidavit for small estates, which often allows executors to bypass interactions with the court.

To avoid probate with a small estate affidavit, you can try to limit what you own at the time of death to mostly nonprobate assets — like jointly owned accounts and payable-on-death accounts, mentioned above. 

If you’re planning ahead, you can avoid probate by opening an inter vivos trust during your lifetime and transferring assets into it for your future heirs. Trusts are managed and distributed separately from probate according to their own term, which makes them a useful estate planning tool.

Read an in-depth guide on how to avoid probate.

How the probate process works

There's more to probate than just giving away the decedent's assets, and everything begins at the probate court or county clerk's office where the deceased lived.

Don't have a will yet? Start your estate plan with Policygenius.

Initiating a probate proceeding

The death certificate and will should be submitted to court along with the proper petition to start the probate process. If the will doesn’t contain a self-proving affidavit, then the court may call on the witnesses who signed a will to give a personal testimony in order for the will to be proven.

The executor is responsible for choosing the correct probate procedure if the state offers more than one, and beginning this process also allows them to get legal recognition of their role administering the estate.

Learn how to become executor of an estate with or without a will.

Notifying beneficiaries and creditors 

The executor must notify all beneficiaries of a will. Failure to do so can be grounds for a lawsuit from the beneficiaries to seek damages for assets they would've received had they been properly notified.

If any creditors are owed money from the estate, the estate must notify them of the decedent's death within a reasonable time frame.

A last will and testament may also nominate people to become a guardian of the decedent's minor children or even to take care of pets. The executor must notify these people as well.

Assessing property and paying debts

The executor or administrator is responsible for locating the assets that belong to the decedent's estate. They may also need to have the property appraised, since the value of the property will probably become important later on when determining each beneficiary's share. Ongoing lawsuits against the estate may also continue during probate, and the estate may be required to pay out any judgments.

Note that if you're the beneficiary of the estate, you are not personally responsible for paying any of the debt or liabilities of the deceased person unless you co-signed the debt or were named in a lawsuit that resulted in a judgment against the estate. (Learn more about what happens to your debt when you die.)

Paying debts and taxes are also part of the probate process. This includes not only property tax and income tax owed by the decedent, but the estate tax on estates valued above $11.7 million in 2021. (Inheritance taxes on the other hand are paid by beneficiaries who receive assets.)

Distributing assets

The final stage of probate is distributing the estate to the decedent’s beneficiaries. Specific bequests go to those named to receive them, and the remaining assets, called the residue of the estate, must be divided up according to the terms of the will. Via the executor, the beneficiaries can decide which types of property are transferred to whom, or if the property should be sold and the value distributed proportionally.

When there is no will, the heirs are determined by state intestacy law, where the surviving spouse and closest blood relatives (next of kin) usually receive the assets and property. To prevent state law from deciding who gets your assets, make sure to write a will stating your plans.

Learn about inheritance laws and how to make a will in your state.

Length and costs of probate

The overall cost of probate can range from 3% to 8% of the entire estate value. [1] Probate costs vary by state, and can include:

  • Court filing fees

  • Creditor notice fees

  • Executor fees

  • Probate bond

  • Attorney fees

You can read about each fee in our guide to how much probate costs.

The costs of probate are generally paid out of the estate's assets. (Opening a living trust can help you defray some of these costs, and you can get one when you make a will with Policygenius.)

Probate may take anywhere from a few months to even a year and 16 months on average. [2] Smaller estates generally take less time to settle than larger ones with more moving parts (probate assets, beneficiaries, other complications, like debts and taxes), but it all depends on how quickly the estate representative can get through the process. Legal challenges can lengthen this process so make sure you don't write an invalid will.

Learn more about how long probate takes.