What is probate court?

A type of court that supervises the management of someone’s estate — money, property, taxes, and debts — after they die

Derek Silva

Published January 20, 2021|3 min read

Editorial disclosure

Key Takeaways

  • Probate courts handle matters related to wills, estates, probate assets, and guardianship

  • Your local probate court may be called a surrogate’s court, superior court, district court, or orphans’ court

  • Check your state government’s website to find your local probate court

A probate court is a local court where the probate process is initiated and a probate judge arbitrates as necessary over distribution of the deceased person’s estate. Probate is the legal process occurring after someone dies in order to distribute money and assets from their estate (the collection of everything they owned) as well as pay any taxes or debts the deceased person owed.

Most counties have a dedicated probate court, though your local probate court may go by a different name. The local court in your state may be called a surrogate’s court, superior court, district court, or orphans’ court. Regardless of the exact name, these courts all handle matters related to estates, probate, and guardianships.

The probate court also handles any issues related to someone contesting a will or issues with the administration of a trust. If necessary, the court can usually put you in touch with a probate lawyer or other professionals to help you with probate administration.

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How probate works

The exact probate process varies based on where you live, because each state sets its own laws. Generally speaking, probate is initiated by the executor of an estate. The executor is listed in the decedent’s will and should file the will, death certificate, and other necessary documents with the court. For these procedures they may have to pay court fees, which are one of a few probate costs.

The executor can then handle the process of paying off the estate’s debts, filing necessary income taxes, and moving assets from the decedent’s name to their proper beneficiaries. The actual work of probate generally happens outside of the probate court. For example, the executor (or personal representative) can get the decedent’s car retitled or speak with the decedent’s bank to transfer funds to an account with someone else’s name. (Some transferable- and payable-on-death accounts can transfer to beneficiaries without the need for probate.)

Learn more about how probate works.

Probate without a will

If someone dies without a will, the person is said to have died intestate. The probate court chooses someone to serve as personal representative for the decedent’s estate, and that person has the same duties as an executor would. The decedent’s surviving spouse or other close family members usually receive preference to serve as the representative. When there isn’t a will, the decedent’s possessions and money are usually distributed to their next of kin, the most closely related family members.

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Can you avoid probate?

For the most part, estates must go through probate as long as they have assets to pass on, debts to pay, or income taxes to file. However, some states may allow small estates and its beneficiaries to avoid some or all probate proceedings. The definition of a small estate varies by state, but it’s based on the overall value of the estate. How the estate’s value is determined also varies by state. For example, the cost of a car may or may not need to be included. It’s also possible that any real property (real estate) the decedent owned still needs to be probated even if the rest of the estate qualifies as a small estate under state law.

When an estate does qualify as a small estate, certain paperwork still needs to be completed and filed with the probate court. You may need to file a form called a small estate affidavit. The exact process also depends on whether or not there is a will. The executor will file the forms if there is a will and if there isn’t a will, the inheritor of assets will need to file the forms in court. Again, beneficiaries may be able to skip probate for personal property if the estate is worth less than a certain amount, but they may still need to go to probate court to handle the transfer real property.

Learn how to avoid probate.

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