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The essentials of probate

6 min read

When someone has passed away, all of the property they leave behind becomes part of their estate, which then must be settled, with all of its debts paid off and its assets distributed to others according to the instructions in their will (or according to state law, if there is no will). Most estates are settled through a process known as probate, which generally involves filing paperwork with a local court and sometimes making multiple court appearances.

Depending on the laws of the state in which the deceased lived, probate can be a quick and relatively easy process, especially if there are very few or no assets left in the person’s estate. On the other hand, in some states probate can be complicated and drag on for months or years, especially if there’s a large estate left behind.

As most families whose loved one has passed away must deal with probate in one form or another, it’s a good idea for them to have a sense of what to expect.

How probate begins

The first step in probate is to petition for the deceased’s will to be verified and recognized as their valid will. In general, the person who is named executor in the will should be the one to petition for probate, filing it with the probate court in the county where the deceased last lived. (Probate courts sometimes have a different names, depending on the state.) Once the will is validated, the court will issue paperwork, usually called letters testamentary, that officially gives the executor the legal right to act on the behalf of the estate. If there is no will, the person’s next of kin or other close relative should petition the court to open probate. The court will appoint an administrator to handle the estate by issuing them letters of administration.

A representative is usually not appointed immediately after the petition is filed; depending on the state, it can take up to a few weeks. During this time, all the family and the executor can do is wait until the letters testamentary are issued. If the will is contested, or if there are any other doubts as to its validity, this part of the process can stretch on for months, and the estate cannot even start to be settled until it is resolved.

What probate involves

Once a representative (an executor or administrator) has been appointed, they will notify all potential creditors of the estate that the person has died. Any creditors that the executor does not already know about will have a limited period of time to come forward and collect on the debt that the deceased owed. Depending on the state, this notification is usually done via a public posting in a newspaper.

The person’s beneficiaries must generally also be notified of the death if they do not know and told that they are named in the will. If there is no will, the person’s legal heirs should be notified.

Many executors are required to post a bond, as a guarantee that they will settle the estate properly. Some executors are exempt from this, however, and many wills state that the need for a bond is waived.

The rest of probate involves inventorying and evaluating all of the assets in the estate—from cash to real estate to jewelry to intellectual property—paying all of the estate’s debts out of these assets, and then distributing what is left over to the beneficiaries according to the instructions in the will or to their heirs according to state law. Most executors and administrators find it most useful to open a bank account in the name of the estate (the deceased bank accounts must be closed after their death) in order to make all of these payments and distributions.

How long probate takes

A big question a lot of families have is how long probate is going to take. They want to know not only because it can be such an arduous process but also because it’s hard to move on emotionally while dealing with all the legalities.

Although no one can give a definitive answer or an exact date, the simpler the estate is, the quicker the process will be. Debt generally doesn’t delay the process very much; even if there are more debts than assets, the court and state law will decide which creditors are paid from the existing assets and which creditors may have to take a loss. In this case the beneficiaries or heirs don’t receive any assets, but the process itself is relatively simple.

The more complex the estate, the longer probate will generally take. Complex estates are ones that contain real estate in multiple states or countries, businesses or parts of businesses, intellectual property and other items that may be difficult to appraise or evaluate, and so on. In addition, if the instructions in the will are complex or difficult to understand, if there are conflicting versions of the will, or if a family member is contesting the will, this can cause probate to be delayed.

Finally, the state that the person lived in and even the specific probate court can affect the speed of the process. California famously has a rather long probate process, while Massachusetts has a reputation for taking care of it quickly.

Which assets go through probate

It’s important to keep in mind that not everything that the deceased owned becomes part of their estate for the purposes of probate. If the person owned property jointly with one or more other people, in many cases that property is designated with a “right of survivorship,” and the joint owner simply takes full ownership without it passing through probate.

Any asset with a designated beneficiary also does not become part of the probate estate but passed directly to that beneficiary. This may include bank accounts with a payable on death (POD) beneficiary, stock accounts that are transfer on death (TOD), TOD deeds in states that allow them, retirement accounts, pensions, and so on. This category also includes life insurance payouts, which do not pass through probate unless the deceased named their own estate the beneficiary of the policy instead of a person or people.

Assets placed in living trusts also avoid probate, which is why many people use them as a way of planning for their own estate when they write their wills.

In addition, each state may have specific laws about exemptions from probate, often for property that goes directly to the person’s family so that their lives are not disrupted. Granted, what is exempt from probate varies from state to state. In California for example, property worth up to $100,000 can be transferred to a surviving spouse without going through probate.

Losing a loved one is one of the most difficult things that most people will go through in life. The probate process can be a big part of this, as it costs money, takes time, and can be a big source of stress. Most states give the family options for a simplified version of the process for smaller estates, or even ways to sidestep probate entirely. If this is a possibility, it is often a good idea to avoid a drawn-out probate process—and we always advise families to talk to an attorney to understand the options available to them