What is probate? How the court process works

The short answer: probate is the court-supervised process of settling someone's estate after they die.

• The court confirms the will and appoints someone to handle the estate
• Debts and taxes are paid, then what's left goes to the heirs
• Whole process: several months to over a year
• Avoid it with beneficiaries, payable-on-death names and transfer-on-death deeds
• Next step: Plan it with the If Something Happens to Me Binder ($11.99).

What is probate? Probate is the court-supervised process of settling someone's estate after they die. The court confirms the will, appoints a person to handle the estate, makes sure debts and taxes are paid, and approves handing what is left to the heirs. Investopedia's guide to probate notes that it can be slow and costly, which is why many people plan to keep assets out of it. This guide is general information, not legal advice. Estate law differs by state, so check your state court's self-help pages or talk with a licensed estate planning attorney before you sign anything.

Why probate exists

Probate protects three groups. Heirs get a neutral process for dividing property. Creditors get a fair chance to be paid. And buyers of estate property, such as a house, get clear legal title. The court oversees the person in charge so they cannot simply keep or give away assets as they please.

How the probate process works

Details differ by state, but the California Courts probate self-help guide lays out a typical sequence:

1. File a petition with the probate court in the county where the person lived, with the original will if there is one.
2. Give notice to heirs and beneficiaries, and often publish a notice in a local newspaper.
3. Court appoints a representative, called an executor if named in a will or an administrator if not, and issues letters giving them authority.
4. Inventory and appraise the assets.
5. Notify creditors and pay valid debts and expenses.
6. File tax returns, including the final personal income tax return.
7. Ask the court to approve the final accounting and distribution.
8. Distribute the assets and close the estate.

How long does probate take?

Disputes over the will, hard-to-value assets, property in more than one state and slow tax filings all add time. Investopedia notes that federal estate taxes, for the few estates large enough to owe them, can come due within nine months of the date of death.

What probate costs

Probate costs come out of the estate, not the heirs' pockets directly. Typical expenses include:

Investopedia notes that probate without a valid will is usually more costly than probate with one.

Which assets go through probate?

The size of the probate estate is often much smaller than the person's total wealth, because so much passes by beneficiary form.

Probate with no will

When someone dies without a will, they died intestate. The court still runs probate, but it names an administrator, usually a spouse or adult child, and divides the estate under the state's intestacy law. That law usually favors a spouse and children first, then parents, siblings and more distant relatives. It does not consider friends, unmarried partners or charities.

To see what a will would have covered, read what is a will.

Small estates and simplified probate

Most states offer a shortcut for smaller estates, such as a small estate affidavit or summary administration. California's self-help pages describe simpler options for estates under a set value. The dollar limit, waiting period and which assets count differ by state, so check your own state court's website before starting a full case.

How to avoid probate

1. Name beneficiaries on retirement accounts, life insurance and annuities.
2. Add payable-on-death names to bank accounts and transfer-on-death names to brokerage accounts.
3. Use a transfer-on-death deed for real estate where your state allows it.
4. Hold property jointly with right of survivorship, after thinking through the risks.
5. Create and fund a living trust for assets that need management or privacy.
6. Review designations after a marriage, divorce, birth or death.

Avoiding probate is not always necessary. For a simple estate in a state with streamlined rules, probate can be routine.

Does every estate need probate?

No. Many estates never open a probate case at all. If everything passed by beneficiary form, joint ownership or a trust, there may be nothing left in the person's name alone. If what is left is small, a small estate affidavit may be enough. Probate is mainly needed when significant property is titled only in the person's name, when real estate must be transferred, or when the family disagrees. A quick inventory of how each asset is titled tells you which path applies.

What heirs should expect

Heirs usually receive a notice that the case has been opened, and later an accounting of what came in and went out. Most states do not allow distribution until creditor deadlines pass and taxes are settled, so waiting a year or more is normal. An heir who has questions can ask the representative for updates, and can raise concerns with the court if accounts are not provided.

Who is involved in probate

When someone challenges the will

A will contest is a formal objection to the will in probate court. Common grounds include claims that the person lacked mental capacity, was pressured by someone close to them, or did not sign the will properly. Only people with a stake, such as heirs who would inherit without the will, can usually object, and there are strict deadlines.

A contest can add months or years and drain the estate through legal fees. A clear, properly signed will, updated after big life changes, makes a challenge less likely. Some people also explain unusual choices in a separate letter to their family.

Probate and real estate

A house is often the biggest asset in probate. The representative may need court approval to sell it, depending on the state and the powers granted. Meanwhile someone must keep paying the mortgage, insurance, taxes and utilities, and keep the home secure. If the person owned property in another state, a second "ancillary" probate case may be needed there, which adds time and cost. A living trust or a transfer-on-death deed, where allowed, can prevent this.

Questions to ask a probate attorney

1. Does this estate qualify for a small-estate or simplified process?
2. How are your fees charged, and what will the court charge?
3. How long do estates like this take in this county?
4. Is a bond required, and can it be waived?
5. What should the family not do yet, such as selling property?

Taxes during probate

The person handling the estate must file the final federal income tax return for the year of death. The IRS page on filing a deceased person's final returns explains who signs and how to claim a refund. The estate may also need its own income tax return if it earns income while it is open.

Make it easier on your family

The hardest part of probate is often just finding everything. The If Something Happens to Me Binder ($11.99, printable PDF) has Key Contacts, Bank & Financial Accounts, Insurance Policies, Bills & Subscriptions, Property & Vehicles, Digital Accounts and Where to Find Documents. Fill it in now, note who your beneficiaries are on each account, and tell your executor where it lives.

Related guides: executor of estate, what is a trust and how to make a will.

Life insurance with named beneficiaries usually pays out directly rather than through probate, and our guide to term life insurance explains how to choose coverage and beneficiaries.