What you need to know about probate

  • Probate is a legal process that must be completed after someone dies, before any heir or beneficiary can receive their inheritance.

  • Probate is conducted in state courts, so every state in the U.S. has slightly different laws and processes.

  • The main steps of the process are fairly universal, however, starting with filing the will in court.

  • If there is no will, a member of your family will need to petition the court to begin the probate process.

  • Depending on state law, and depending on the complexity of the estate’s financial situation, probate can be completed in a few weeks, or it can drag on for years.

When someone dies, all of their assets and debts become known as their estate. And before the estate’s assets are transferred to its beneficiaries, it must go through a legal process called probate.

The origins of the word are Latin: probatum, which means “it is tried, tested, or proved.” And that is exactly what happens when a will is filed in probate court—it’s proved to be legitimate. In the process, every asset must be appraised and every debt must be located to determine the true value of the estate. And if there are concerns about the will’s legitimacy, it can be contested in court.

Each state has its own set of probate rules and processes, and the timeline varies widely as well. Depending on where you live and the complexity of the estate, it can last anywhere from a few weeks to a few years.

The basic elements of probate

While rules for probate vary from state to state, the process as a whole has some key elements that usually don’t waiver no matter what state your loved one lived in:

  • Filing papers in probate court in the county where your loved one lived.

  • Proving in court that their will is valid, if there is a will.

  • Contacting all beneficiaries and updating them throughout the probate process.

  • Appraising the estate’s property.

  • Posting notices for creditors and paying debts in the order set up by the laws in your state.

  • Awarding the remaining assets to beneficiaries.

The role of the executor or administrator

If there is a will with a named executor, these tasks fall to them.

The executor is the person who is legally responsible for guiding the estate through the probate process. Often a surviving spouse or an adult child, the executor can be designated in the will or be chosen by the court.

If there is no will, a member of your family will need to petition your local court to appoint an administrator. The petitioner would ideally be a close relative, and the person who will be appointed administrator. A judge will affirm the request, or if they deny it, they will appoint someone else as administrator.

If there is no will, a member of your family will need to petition your local court to appoint an administrator.

Administrators, personal representatives, and executors serve the same function—to guide the estate through probate—but administrators do not have the guidance of a will when it comes to distributing assets to beneficiaries at the end of the process. Instead, a judge will transfer shares of the estate to various family members, based on state law.

Usually the executor is entitled to compensation, but that amount is dependent on the state in which the person died, as states have different laws in how that amount is decided. But no matter how much it is, the amount will be paid from the estate’s funds, as will all probate-related fees.

Assets that can bypass probate

An estate may have to go through probate, but that doesn’t mean all of its assets must go through the whole process.

Each state has their own rules as to what can be transferred to beneficiaries outside of the probate process, but examples include: IRAs, 401(k)s, property held in a living trust, pensions, and accounts that are payable-on-death or transfer-on-death.

In addition, even if you can’t bypass probate, you may be able to use a simplified probate process that’s faster and less costly. If the estate is valued under a certain dollar amount (which can be as low as $10,000 or as high as $275,000) you could qualify.

You’ll need to check with local laws to determine whether your loved one’s estate is eligible for the simplified process. And you’ll need to be able to prove what the estate is worth by appraising all assets, minus all outstanding debts.

Probate courts across the U.S.

Although it would make sense that probate would go through a probate court, not every state uses that term.

For example, in both Pennsylvania and Maryland, probate court is called Orphan’s Court. The reason for this is based on how historically it was meant to protect widows and orphans in regard to what belonged to them from the estate of a loved one. And in New York, if you’re going through probate, you petition the Surrogate’s Court.

But whatever the courts call themselves, the probate process can feel daunting, especially if you’ve never been through it before. It doesn’t help that you’re dealing with probate at the same time you’re going through the heart-wrenching process of grieving the loss of someone you love.

But step by step, little by little, the probate process can be conquered. Remember to ask for help when you need it—especially from experts in the field, like lawyers and accountants—and be patient and kind with yourself.

You may be eligible for free bereavement support. Empathy can help with everything from funeral planning to estate administration, with step-by-step guidance and real-time expert support. Many people get free premium access to Empathy as a benefit with their life insurance claim. We partner with New York Life, Guardian Life Insurance Company, Bestow, Lemonade, and other leading carriers. When you make your life insurance claim, talk to your representative about whether Empathy is a benefit they offer.