What is Probate
Probate is the legal process of validating a deceased person's will and administering their estate, including paying debts and distributing assets to heirs.
Probate is the court-supervised legal process of settling a deceased person's estate. It involves validating the deceased's will (if one exists), appointing an executor or administrator, paying debts and taxes, and distributing remaining assets to heirs and beneficiaries. Probate typically takes several months to over a year, and the process varies significantly by state.
The Probate Process Step by Step
1. Filing the Petition
The executor named in the will (or a family member if there is no will) files a petition with the probate court in the county where the deceased lived. The court officially opens the probate proceeding.
2. Validating the Will
The court determines whether the submitted document is a valid will. Requirements typically include:
- Written document
- Signed by the testator (person who made the will)
- Witnessed by two (sometimes three) disinterested witnesses
3. Appointing the Executor/Administrator
The court officially appoints:
- Executor (or executrix) — Person named in the will to administer the estate
- Administrator — Court-appointed when there is no will (called dying "intestate")
4. Inventorying Assets
The executor takes an inventory of all probate assets including real property, bank accounts, investments, personal property, and business interests.
5. Notifying Creditors
Creditors must be formally notified and given a period (usually 3–6 months) to file claims against the estate for money owed.
6. Paying Debts and Taxes
Before distributing anything to heirs, the estate must pay:
- Funeral and burial expenses
- Outstanding debts
- Federal and state estate taxes (if applicable)
- Income taxes for the final year
7. Distributing Assets
After debts are paid, remaining assets are distributed to beneficiaries as directed by the will — or by state intestacy laws if there is no will.
Assets That Avoid Probate
Some assets pass outside of probate directly to named beneficiaries:
- Life insurance policies with named beneficiaries
- Retirement accounts (401k, IRA) with named beneficiaries
- Jointly owned property with right of survivorship
- Assets held in a living trust
- Payable-on-death (POD) and transfer-on-death (TOD) accounts
Why People Try to Avoid Probate
- Cost — Attorney fees, court costs, executor fees can total 3–7% of the estate
- Time — Can take 1–2 years or longer
- Public record — Probate filings are public; living trust distributions are private
- Multistate property — Real estate in multiple states requires probate in each state
Avoiding Probate
Common strategies include:
- Living trust — Assets in a trust pass directly to beneficiaries
- Joint ownership — Property passes to the survivor automatically
- Beneficiary designations — For accounts and insurance policies
- Small estate affidavit — Many states allow simplified procedures for small estates
For those looking to set up a living trust or will to avoid probate, Trust & Will is an online estate planning service that offers attorney-reviewed trusts, wills, and powers of attorney — typically completed in under 20 minutes at a fraction of the cost of traditional estate attorneys.