Key Takeaways
- Probate is the court-supervised process of settling a person’s estate after death: validating the will, paying debts and distributing property.
- It applies to assets in the person’s name alone with no beneficiary; many assets skip it.
- The executor named in the will, or a court-appointed administrator if there’s no will, runs the process.
- Probate typically takes several months to more than a year, and its records are generally public.
- Many states offer a faster, simplified process for small estates.
What is probate?
Probate is the legal process that transfers a deceased person’s property to the right people. A probate court confirms that the will is valid (or applies state law if there isn’t one), gives someone legal authority to act for the estate, and oversees paying debts and distributing what’s left.
The person in charge is called the executor (or personal representative) when named in a will, or the administrator when appointed by the court because there’s no will. See what happens if you die without a will.
What goes through probate, and what doesn’t
| Usually goes through probate | Usually skips probate |
|---|---|
| Real estate in the person’s name alone | Real estate held jointly with right of survivorship, or with a transfer-on-death deed |
| Bank accounts with no payable-on-death beneficiary | Payable-on-death bank accounts |
| Investments with no transfer-on-death beneficiary | Transfer-on-death brokerage accounts |
| Vehicles, furniture, jewelry and other belongings | Life insurance and retirement accounts with named beneficiaries |
| Assets that name “my estate” as beneficiary | Assets held in a living trust |
The probate process, step by step
- File the will and a petition with the probate court in the county where the person lived.
- Court appoints the executor and issues documents (often called letters testamentary or letters of administration) giving them authority.
- Notify heirs and creditors. Many states require a published notice, after which creditors have a limited time to make claims.
- Inventory the assets and, where required, get them appraised.
- Pay debts, final expenses and taxes, including final income tax returns.
- Distribute the remaining property to beneficiaries under the will or state law.
- Close the estate, often with a final accounting filed with the court.
How long does probate take?
Simple estates may finish in a few months. Larger or more complicated estates, especially those with disputes, real estate in several states or tax issues, can take a year or more. The creditor claim period alone often lasts several months.
How much does probate cost?
Costs can include court filing fees, attorney fees, executor compensation, appraisals and bond premiums. Some states set fees by statute as a percentage of the estate; others use “reasonable” fees. Small estates using a simplified process usually cost much less.
Simplified probate for small estates
Most states offer a small-estate affidavit or summary procedure when the probate estate is below a set value. The threshold varies widely by state. Heirs can often collect assets with a sworn statement instead of full court proceedings.
Can you avoid probate?
Often, yes, by using beneficiary designations, payable-on-death and transfer-on-death registrations, joint ownership or a living trust. See how to avoid probate.
Frequently asked questions
No. If all of a person’s assets pass through beneficiary designations, joint ownership or a trust, there may be nothing left to probate. Small estates may qualify for a simplified process.
No. A will tells the probate court how to distribute your property, but assets controlled by the will still go through probate.
Generally yes. Wills filed with the court and many probate documents can be viewed by the public.
The estate does, using its assets, before beneficiaries receive anything. Family members usually aren’t personally responsible for a deceased relative’s debts unless they co-signed or share the debt.
Not always. Some states make it practical for executors to handle simple estates themselves, especially with simplified procedures. Complex or contested estates usually benefit from an attorney.
Keep reading
- Estate Planning Checklist: The Documents Everyone NeedsA plain-English estate planning checklist: the will, living will, powers of attorney and other documents everyone needs, plus what to organize and when to update.
- What Is a Living Will? How It Works and What to IncludeA living will records your wishes about life-sustaining treatment if you can't speak for yourself. Learn what it covers, when it applies and how it differs from a will.
- Living Will vs. Advance Directive: What’s the Difference?What is an advance directive? It's the umbrella term for your written health care instructions. Learn how living wills, health care proxies and advance directive forms fit together.
- Will vs. Trust: Which Do You Need?Compare a will and a revocable living trust on probate, privacy, cost and control. Learn when a will is enough and when a trust makes sense.
- What Happens If You Die Without a Will?If you die without a will, state intestacy law decides who inherits, who manages your estate and who raises your kids. Here's what typically happens.
- Funeral Planning Checklist: How to Plan AheadA step-by-step funeral planning checklist: burial or cremation, the service, costs, paperwork and how to make sure your family can find your wishes in time.
- How to Avoid Probate: 6 Common StrategiesProbate can be slow, public and costly. Learn six common ways to pass assets directly to your heirs, from beneficiary designations to a living trust.
- How to Choose an Executor for Your Will (and What They Do)Your executor carries out your will. Learn what an executor does, who makes a good choice, and the mistakes to avoid when naming one.
- Pet Trust: How to Provide for Your Pets After You’re GonePets can't inherit money, but a pet trust can fund their care. Learn how pet trusts work, how they compare with a will, and how to choose a caregiver.
- What Is a Living Trust? How It Works, Pros and ConsA living trust holds your assets during life and passes them to your heirs without probate. Learn how revocable living trusts work, what they cost, and who needs one.
- How to Make a Will: Step-by-Step Guide and Legal RequirementsLearn how to make a valid will: what to include, who can witness it, whether it needs a notary, and the common mistakes that can make a will fail.
- Letter of Instruction: What to Include for Your FamilyA letter of instruction tells your family where everything is and what you want. Learn what to include, how it differs from a will, and where to keep it.
- Digital Estate Planning: What Happens to Your Online AccountsWhat happens to your email, photos, social media and online accounts when you die or become incapacitated? A practical guide to digital estate planning.
- DNR vs. Living Will vs. POLST: What’s the Difference?A living will is your own instructions; a DNR and a POLST are doctor's orders. Learn how each works, who signs it, and which ones emergency responders follow.
- How Much Does a Will Cost? Lawyer vs. Online vs. DIYA simple will can cost nothing or several thousand dollars depending on how you make it. Compare attorney, online and DIY costs, and what's included at each price.
- Do You Need a Lawyer to Make a Will?No state requires a lawyer to make a valid will, and many people can do it themselves. Here's when a DIY or online will works and when an attorney is worth it.
- Last Will vs. Living Will: What’s the Difference?A last will controls your property after death; a living will states your medical wishes while you're alive. Learn how they differ and why most adults need both.
- Executor vs. Trustee: What’s the Difference?An executor settles your estate through probate under your will; a trustee manages assets held in a trust, sometimes for years. Compare their roles, powers and how to choose.
Don’t leave your family guessing
Put your health care wishes in writing with a living will, HIPAA release and medical authorization. The No Brainer Box adds a last will, a revocable trust and health care and financial powers of attorney.
- Answer a few simple questions online
- Download your completed, ready-to-sign forms
- Sign them and keep copies in your account
This guide is general educational information written by the No Brainer Forms Team. It is not legal advice, and No Brainer Forms is not a law firm. Laws and signing requirements vary by state; for advice about your situation, talk to a licensed attorney in your state.