Probate: What It Is and How It Works

Key takeaways
* Probate is the court-supervised process of administering a deceased person’s estate: proving a will (if one exists), paying debts and taxes, and distributing remaining assets.
* Probate can proceed with a valid will (testate) or without one (intestate). Rules and thresholds vary by state.
* Some assets bypass probate: life insurance and retirement accounts with named beneficiaries, jointly owned property with rights of survivorship, and assets held in certain trusts.
* Probate can be time-consuming, public, and costly; estate planning tools can reduce or avoid it.

What is probate?

Probate is the legal process that settles a decedent’s financial affairs and transfers ownership of assets to heirs or beneficiaries. The court oversees validation of a will (if present), appointment of the person who will manage the estate, payment of creditors and taxes, and distribution of remaining property.

How probate differs with and without a will

With a will (testate)
* The deceased (testator) typically names an executor to manage the estate.
* The executor files the will with the probate court, asks to be appointed, locates assets, inventories and values them, notifies creditors, pays debts and taxes, files final tax returns, and requests court approval to distribute assets to beneficiaries.
* Real estate located in other counties may require ancillary probate where the property is located.

Without a will (intestate)
* The court appoints an administrator (similar duties to an executor).
* State intestacy laws dictate who inherits (commonly spouse, children, then other relatives). Close friends generally do not inherit under intestacy rules.
* If no heirs can be found, assets may escheat to the state.

Common legal and practical factors
* Estate size and state filing thresholds.
* Whether the estate includes real estate or other assets that may require ancillary proceedings.
* Presence of a surviving spouse or dependents.
* Named beneficiaries and how assets are titled.
* Outstanding debts, liens, and taxes.
* Whether a trust or beneficiary designations already govern assets.

Executor and administrator duties (summary)
* Locate and secure assets.
* Inventory and value the estate.
* Notify and settle creditor claims (time limits vary by state).
* File necessary tax returns and pay estate taxes if applicable.
* Distribute assets according to the will or state law after court approval.

Which assets typically bypass probate?
* Life insurance and retirement accounts (401(k), IRA, pensions) with designated beneficiaries.
* Accounts with payable-on-death (POD) or transfer-on-death (TOD) designations.
* Property held jointly with right of survivorship.
* Assets held in properly funded revocable or irrevocable trusts.
These arrangements transfer ownership outside of the probate court, speeding distribution and preserving privacy.

Is probate always required?
* Not always. Many states set value thresholds or simplified procedures for small estates. If estate assets are entirely nonprobate (beneficiary-designated or jointly owned), probate may be unnecessary.
* Probate is more likely when the decedent owned significant assets solely in their name, owned real estate that must be re-titled, or when the will’s validity is contested.
* Probate proceedings are generally public records; avoiding probate can keep estate matters private.

Probate costs and timing
* Costs depend on state rules and the complexity of the estate: court and filing fees, publication costs, attorney and executor fees (charged as flat fees, hourly rates, or in some places as a percentage of the estate), accounting and appraisal fees, and taxes.
* More complex or contested estates take longer and cost more. Even straightforward probates can take months; larger or disputed estates can take a year or more.

How to reduce or avoid probate
* Use beneficiary designations on life insurance, retirement plans, and bank accounts.
* Hold property jointly with right of survivorship when appropriate.
* Create and fund a revocable living trust to transfer assets directly to beneficiaries.
* Make small gifts during life to reduce the probate estate.
* Use state-specific small estate affidavits or simplified procedures if the estate qualifies.
* Keep an up-to-date, easily authenticated will and maintain clear records of assets and beneficiaries.

Conclusion

Probate is the legal mechanism for validating wills, paying debts, and transferring assets after death. Because it can be lengthy, public, and costly, careful estate planning—using beneficiary designations, joint ownership, trusts, and clear wills—can minimize the need for probate or simplify the process for survivors. State rules vary, so consult local statutes or an estate-planning attorney when designing an approach that fits your situation.