Probate Court: What It Is and How It Works

Key takeaways
* Probate court supervises the legal process for administering a deceased person’s estate: validating wills, paying debts, and distributing assets.
* Assets titled solely in the decedent’s name typically must go through probate; accounts with designated beneficiaries, trusts, and certain jointly owned property usually avoid it.
* The probate process includes filing a petition, appointing an executor or administrator, notifying creditors and beneficiaries, settling debts and taxes, and distributing remaining assets.
* You can often reduce or avoid probate by using living trusts, beneficiary designations, joint ownership, and lifetime gifts.

What is probate court?

Probate refers both to the legal process of settling a deceased person’s affairs and to the court that oversees that process. The court’s role is to:
* Determine the validity of a will (if one exists).
* Appoint an executor or administrator to manage the estate.
* Supervise the payment of debts and taxes.
* Ensure assets are distributed according to the will or, if there is no will, according to state intestacy laws.

Names and procedures vary by state; some jurisdictions call it surrogate’s court, orphan’s court, or chancery court.

Assets that must (and must not) go through probate

Assets that commonly require probate:
* Property titled solely in the decedent’s name (real estate, vehicles).
* Interests owned as tenants in common.
* Personal property without designated successors.

Assets that typically avoid probate:
* Retirement accounts and IRAs with named beneficiaries.
* Life insurance proceeds paid to designated beneficiaries.
* Pension distributions with beneficiary designations.
* Assets placed in a living trust.
* Payable-on-death (POD) bank accounts and payable-on-death savings bonds.
* Securities registered transfer-on-death (TOD).
* Certain wages or benefits, and household goods intended for immediate family (subject to state rules).

The probate process: steps and variations

Formal probate (typical for larger or contested estates):
1. File a petition with the probate court and submit the will (if any) and a death certificate.
2. Court appoints an executor (or an administrator if there’s no will) and issues Letters Testamentary or Letters of Administration, giving authority to act for the estate. A bond may be required.
3. Executor inventories assets, notifies beneficiaries and creditors, and publishes notices if required.
4. Pay valid creditor claims, settle taxes, and, if necessary, liquidate assets to satisfy debts.
5. Provide court-required accountings and, once approved, distribute remaining assets to beneficiaries.
6. Close the estate.

Summary or informal probate:
* Available in many states for small, simple, uncontested estates. It involves less court oversight but still requires filing necessary documents.

If there is no will (intestate succession)

When someone dies intestate, the probate court distributes assets according to state intestacy laws, typically prioritizing spouse, children, descendants, parents, and other relatives in a defined order. Probate is still usually required to clear title and settle debts.

Costs, timeframes, and professionals involved

Common costs:
* Court filing fees
* Executor or administrator fees (may be set by statute)
* Attorney and accountant fees
* Costs for appraisals, bond premiums, and publication notices

Timeframe:
* Varies widely based on estate size, complexity, creditor claims, and disputes. It can take from a few months to several years.

Professionals:
* Executors often work with probate attorneys and accountants for complex tax, valuation, or litigation issues.

How to avoid or minimize probate

Strategies to keep assets out of probate or simplify the process:
* Create a living (revocable) trust and title assets in the trust’s name.
* Name beneficiaries on retirement accounts, life insurance, and transfer-on-death designations on securities.
* Hold property jointly with rights of survivorship where appropriate.
* Use payable-on-death (POD) or transfer-on-death (TOD) designations for bank and brokerage accounts.
* Make lifetime gifts within applicable tax rules (note: gift tax exclusions and limits change periodically).
* Keep estate documents organized and update beneficiary designations regularly.

Common questions

Do I always have to go to probate court when someone dies?
* Not always. Many assets can pass outside probate through beneficiary designations, trusts, or joint ownership. But probate is commonly required to settle debts and transfer title to property titled only in the decedent’s name.

How long does probate take?
* It depends on the estate’s complexity and whether disputes arise. Expect anywhere from a few months for small, simple estates to one or more years for large or contested ones.

How do I object to something in probate?
* Objections (e.g., allegations of undue influence or will forgery) are filed with the probate court. Most courts provide forms and procedures; consult the local probate rules or an attorney to ensure timely filing.

Conclusion

Probate court ensures that a decedent’s debts are paid and assets are distributed according to law. Understanding which assets pass through probate, the steps involved, and options for avoiding or simplifying probate helps executors and families manage the process more effectively and reduce delays and costs. Planning tools such as trusts and beneficiary designations are the most effective ways to limit exposure to probate.