How Does Probate Work?
Probate is the court-supervised process of settling a deceased person's estate. The executor files the will, is appointed by the court, notifies heirs and creditors, inventories assets, pays valid debts, taxes and expenses, and distributes what remains to beneficiaries before closing the estate. Simple estates often take several months to a year. Many states offer shortcuts for small estates, and assets with beneficiary designations skip probate.
Probate gives legal authority to transfer a deceased person's property and makes sure debts are paid first (Cornell LII). Each state has its own procedures, but the steps are similar.
What goes through probate
Assets in the deceased person's name alone with no beneficiary designation, such as a house titled only in their name, individual bank accounts, vehicles and personal property.
What usually skips probate
- Retirement accounts and life insurance with named beneficiaries
- Payable-on-death and transfer-on-death accounts
- Jointly owned property with survivorship rights
- Assets held in a living trust
- Real estate with a transfer-on-death deed, where allowed
The steps
- File the petition with the probate court in the county where the person lived, along with the original will and death certificate.
- Appointment: the court appoints the executor named in the will, or an administrator if there is no will, and issues letters testamentary or of administration. A bond may be required.
- Notice to heirs and beneficiaries, and notice to creditors, often by publication. Creditors then have a limited period to file claims.
- Inventory and appraisal of the estate's assets.
- Manage the estate: secure property, keep insurance, collect debts owed to the estate, open an estate bank account.
- Pay valid debts, expenses and taxes, including final income taxes and any estate tax.
- Distribute remaining assets as the will or state law directs.
- Close the estate with a final accounting and court order.
Our executor checklist breaks these into tasks.
How long it takes
Simple, uncontested estates often take several months to a year. Disputes, real estate sales, business interests or tax issues can take longer.
Costs
Court filing fees, publication costs, appraisals, bond premiums, and lawyer and executor fees. Some states set fees as a percentage of the estate; others require reasonable hourly fees.
Small estate options
Most states let heirs collect assets of small estates with an affidavit or a simplified procedure, without full probate. Limits vary greatly; find your state's small estate rules under state laws.
Avoiding probate
People often use living trusts, beneficiary designations and transfer-on-death tools to reduce or avoid probate. See living trust vs. will.
An estate planning lawyer can guide an executor through each step.
Sources
Find estate planning lawyers near you
Whether you need a will, a living trust, a power of attorney, probate or help with elder law, compare local estate planning attorneys by Google rating, reviews and office hours below.
Estate Planning Lawyers by state
Tap your state to see listings by city.
This article is general legal information, not legal advice, and reading it does not create an attorney-client relationship. Laws differ by state and change over time; talk to a licensed attorney in your state about your situation.