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

Probate is the legal process for distributing your property after you die.
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Probate is the legal process for distributing the assets and property of someone who died. If the deceased (called the “decedent” in legal settings) left a will, the probate court will validate the document and appoint an executor to distribute the decedent’s property to beneficiaries and pay the estate’s debts or taxes

American Bar Association. The Probate Process.
.

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

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 your total assets are worth less than your state’s estate limits.

🤓Nerdy Tip

Many people want to avoid probate or dread the process. They might be alarmed by the costly and lengthy probate processes seen in high-profile or celebrity estates, but for most people, probate takes a few months to a year. Large estates, complicated assets or a contested will can complicate and extend the process, sometimes for years.

What is probate court?

Probate court is a state or local court that determines if a person’s will is valid, officially names executors or administrators to manage and distribute a deceased person’s assets and oversees the distribution process. Some probate courts also handle guardianship and conservatorship

Cornell University Legal Information Institute. Probate court. Accessed May 31, 2024.
.

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.

How does probate work?

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

Probate process with a will

Here’s how the probate process often starts if the deceased 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 make sure it is authentic. The process is easiest when the will includes a self-proving affidavit, a sworn statement signed by the author and witnesses that legally proves its validity. Live testimony or a new sworn statement signed by a witness can also 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

    American College of Trust and Estate Counsel. What is Probate?. Accessed May 31, 2024.
    .

  3. 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

    Cornell University Legal Information Institute. Letters testamentary. Accessed May 31, 2024.
    .

  4. 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

    .

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Probate process without 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 how to distribute the decedent's property and assets.

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

Probate steps with or without a will

The probate 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 representative 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.

How to avoid probate

  • 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)

    . 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

    Cornell University Legal Information Institute. Beneficiary deed. Accessed Jan 23, 2024.
    .

  • 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.

How much does probate cost?

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 size of the estate. 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 things such as 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 $30 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 fees paid to the appraiser.

Frequently asked questions

No, the probate process varies by state. Fees, beneficiary succession and length of time depends on each state’s probate laws.

For example, if you die without a will (intestate) as a resident of Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin, probate courts typically use community property laws to determine who the beneficiaries are and what they receive. Alaska, South Dakota, Kentucky, Tennessee and Florida allow residents to opt in to community property laws.

Community property laws generally hold that both spouses equally own all property obtained during their marriage. In that case, if you are married and have no children when you die, the court will award your assets to your spouse. In other situations, probate courts may use state inheritance rules to decide how to distribute your assets.

In most cases, the estate distribution hierarchy begins with your spouse. If you're not married, your assets may pass to other family members in a specific order, typically starting with your surviving children and then to other relatives based on their closeness to you.

Probate can take a long time and involve court or legal fees. Before actively trying to avoid probate (by putting your assets in a trust, for example, which can be costly), remember that some assets — such as life insurance and retirement plans with named beneficiaries — generally avoid probate anyway. Also, many states have tried to minimize the cost and length of time that it takes to go through this process.

Be sure the beneficiaries you name on your insurance, retirement and bank accounts match the beneficiaries you name in your will. These accounts typically avoid the probate process, and the beneficiary named directly on the account usually takes precedence over what you write in your will. Ensure that your will covers any assets that don’t have an automatic beneficiary designation.

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