What Is Probate? How It Works With or Without a Will

Probate is the court process for determining whether a will is valid, identifying the beneficiaries and distributing a deceased person’s assets and property. Whether you have a will or not, your estate will have to pass through probate unless all of your assets transfer directly (such as a life insurance policy or a trust) or your total assets are worth less than your state’s estate limits.

• If the deceased left a will, the probate court will validate the document, appoint an executor to distribute the decedent’s property to beneficiaries and pay the estate’s debts or taxes ^[0]

  American Bar Association. The Probate Process. Accessed Aug 21, 2024.

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• If there’s no will, the decedent is referred to as dying “intestate,” and their property will be distributed by a court-appointed estate administrator according to their state’s succession laws. 

» MORE: See who has to pay federal or state estate taxes

Probate court is a state or local court that carries out the following processes:

• Determining if a person’s will is authentic and valid.

• Officially naming executors or administrators for a deceased person’s estate (called the “decedent” in legal settings).

• Overseeing the distribution process of the decedent’s assets.

• Processing matters of guardianship and conservatorship, in some cases ^[0]

  Cornell Law School. Probate court. Accessed Aug 21, 2024.

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Every state’s probate court system has its own procedures regarding the probate process, such as estate value limits and filing deadlines. The probate process is part of the public record.

Although laws and procedures vary from state to state, the probate process largely depends on whether the decedent had a will.

Probate process with a will

Here are the primary steps in the probate process if the person had a will.

1. A representative of the estate files the will and a certified copy of the death certificate with the probate court, which validates the will to ensure it is authentic. That process is easier when the will includes a self-proving affidavit, a sworn statement signed by the author and witnesses that legally proves its validity. Without a self-proving affidavit, live testimony or a new sworn statement signed by a witness can help authenticate the will.

2. The court appoints an executor or personal representative of the estate. Generally, the deceased names this person in their will, and the probate court judge appoints them officially. If the will does not include those instructions, the probate court will appoint someone (usually next of kin or a direct family member) as executor or personal representative ^[0]

   American College of Trust and Estate Council. What is Probate?. Accessed Aug 21, 2024.

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3. The executor or family may hire a probate lawyer, also called an estate attorney, to assist with the probate process. You don’t need a lawyer to probate a will, but one can be helpful in cases of disputes or a complex estate.

4. The court gives the executor or personal representative letters of testamentary, which serve as proof for banks and other financial institutions that the executor has permission to handle the deceased’s assets ^[0]

   Cornell Law School. Letters testamentary. Accessed Aug 21, 2024.

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5. The court may require the executor of the estate to post a probate bond (also called a fiduciary bond), a guarantee that the executor will follow state laws and the terms of the will. If they fail to do so, family members of the deceased can file a claim against the bond ^[0]

   NYCourts.Gov. The Fiduciary Bond. Accessed Aug 21, 2024.

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» MORE: How long do you have to file for probate after a person dies?

Probate process without a will

Here are the primary steps in the probate process if the person did not have a will.

1. The court must hold an administrative proceeding to determine how to divide the estate. The court will name an administrator for the estate, also called a representative, who may or may not be a family member.

2. The estate administrator follows the probate judge's instructions on distributing the decedent’s property and assets.

» Want to learn more? See NerdWallet’s estate planning basics

Remaining steps with or without a will

Once it’s clear who is handling the estate, the process typically moves forward with the following steps:

1. Notify beneficiaries and creditors. A beneficiary receives a deceased person’s assets. The executor or representative must identify and inform beneficiaries and creditors about the death. In general, creditors have a limited amount of time to respond and submit claims against the estate.

2. Appraise property and assets. The executor or administrator must determine the value of all probate assets in the estate, typically by drafting an inventory of all personal property. They may get some appraisals done to determine property values. Probate courts commonly look at assets including real estate, bank accounts, investment accounts, personal effects and business interests like LLCs and corporations.

3. Pay outstanding debts. In most cases, the first expenses the estate pays are funeral expenses and taxes. After that, the executor is responsible for paying outstanding debts to creditors who filed a claim within the appropriate time period. The executor is also responsible for disputing claims against the estate if necessary.

4. Make distributions to beneficiaries. The executor or representative handles distributions of any remaining assets to beneficiaries in accordance with the will. Some beneficiaries may have to pay an inheritance tax, which differs among states.

5. Close the estate. The executor or personal representative files a final accounting with the probate court. This report details all assets, debts paid and distributions to beneficiaries. If the court finds the report in good standing, it releases the executor or personal representative from their duties, and the estate is officially closed.

» MORE: The pros and cons of handwriting a will

• Have a small estate. Most states set an exemption level for probate, offering at least an expedited process for what they deem as small estates. In some cases, "small" actually can be quite large ($200,000 in Wyoming, for example) ^[0]

  WYOLeg.org. Wills, Decedents' Estates and Probate Code. Accessed Aug 21, 2024.

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  . Check your state's probate estate limits, and consider giving assets to family and friends before you die. This tactic might also reduce future federal and state estate taxes.

• Establish a trust. A trustee manages property held in a trust and is obligated to distribute the assets under the terms of the trust agreement rather than through the probate process.

• Make accounts payable on death. Bank and other accounts that are payable on death go directly to your designated beneficiary without going through probate, as do life insurance policies with named beneficiaries. Some states also allow similar real estate transfers, called transfer on death deeds.

• Own property jointly. Making your spouse or someone else a joint owner facilitates the asset transfer without the need for probate. Some ways to hold such assets include joint tenancy with right of survivorship, tenancy by the entirety and community property with right of survivorship.

» MORE: How to use life insurance to leave an inheritance

Probate expenses can vary depending on how complicated the estate is and where the person lived. Here are a few expenses typically involved with settling an estate:

• Probate bonds cost around 0.5% of the total bond value, which is usually determined by the estate size. For example, a probate judge might require an executor to acquire a probate bond for $500,000. In this scenario, you'd pay approximately $2,500 ($500,000 x 0.5% = $2,500) for the bond. If something goes wrong during the probate process, the deceased's heirs can file a claim against the bond so that the executor is not liable.

• Filing fees are paid to the court for opening the probate process, providing documents to the executor and closing the estate. These fees vary by state and court, but they can range anywhere from $45 to a few hundred dollars.

• Attorney or personal representative fees are typically a percentage of the estate, and many states provide strict guidelines on how much an attorney or executor can charge. In many cases, family members appointed as executors or personal representatives will waive the fee, but they are not required to do so.

• Reimbursements are paid to the executor or personal representative for expenses they incur during the probate process. For example, if the executor of an estate had to hire an appraiser to determine property value, the executor will be reimbursed for the appraiser's fees.