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What is probate?

We cover everything you need to know about probate, including what probate is and how to avoid it.

evident Editorial Team
November 28, 2023
House and garden in autumn.

Probate is the legal process that ensures a deceased person's property is distributed according to their last wishes. The probate process can unfold either with or without a will.

When there is a will, the process of probate is all about making sure the terms of a will are correctly carried out. When there is not a valid will, the probate court handles the distribution of the deceased’s property and assets based upon state laws. 

The overarching function of probate is to make sure an inheritance is properly distributed to those whom the deceased intended it for. Probate also guarantees that any last wishes of the deceased are carried out.

The probate process involves proving a will to be legally valid, paying any of the deceased’s remaining debts or taxes, and distributing the deceased person's assets. Probate tends to be tedious, but having a clear written will can ease the process.

Key Takeaways

How does probate work?

State probate laws vary, but the overall process is similar across the country. Most wills declare an executor who acts as a personal representative for the deceased person's estate and oversees any court proceedings. 

If the deceased did not leave a will, the court appoints an administrator to oversee the probate proceeding. The estate administrator, often a surviving spouse or next of kin, fills the role of the executor.

The process begins after the executor (or administrator) of the will has filed a probate petition in court. Depending on your state’s laws, other paperwork may be required, such as a death certificate.

Once the probate court judge has verified the will in court, the terms can begin to be executed. (For a will to be considered legally valid, it must be in writing, signed and dated by the person who wrote it, and signed by two witnesses). 

The costs of remaining debts, taxes, and any other costs can be paid for via the decedent's estate. After these steps are complete, the estate's remaining assets are then distributed to their rightful beneficiaries as listed in the will. 

Note that not all wills go through probate. Typically, state laws dictate whether probate is necessary depending on the value of the estate. (For instance, the threshold to be considered a "small estate" in New York is $50,000 in personal property).

What are the executor's responsibilities?

The executor has many responsibilities throughout the probate proceedings.

An executor's responsibilities include identifying all assets, paying remaining debts and taxes, and notifying all beneficiaries.

Identifying all of the assets is crucial because the total value of the estate is needed in order to disperse the shares of the estate. And if you have been named the executor of an estate, be aware that failing to notify all beneficiaries may create grounds for a lawsuit.

What is probate court?

Each state has specialized probate courts that may also be referred to as surrogate’s court, orphan’s court, or chancery court. Probate courts handle legal proceedings involving wills and the distribution of an estate.

Any objections to the terms of a will must be filed and heard in probate court.

What is a probate sale?

A probate sale refers to the court process of selling the property of the deceased person. Like the probate process generally, a probate sale could unfold with or without a will. 

If the deceased has passed away without leaving a will, a probate sale occurs in order to distribute the estate among its heirs. Probate sales also allow for property to be liquidated if there are any outstanding debts or taxes left by the deceased. 

The executor or administrator of the estate decides if the property is to be sold. They would then petition the probate court for permission to list the property for sale. 

The probate court closely oversees the process of a probate sale. Following an appraisal, the court sets the listing price for the property. And for a sale to be official, the offer must include a 10% down payment and be accepted at a confirmation hearing.

How long does probate take?

The length of the probate process varies and depends on several factors, including the size of the decedent's estate. 

Smaller estates usually take less time and may be resolved within weeks or months. Small estates may not even go through probate or might only require a state's simplified probate procedure. State probate laws define what a “small estate” is based upon whether the assets are below a specified value. If the estate’s value is more than the stated value, probate may be necessary. 

For larger estates, the higher amount of assets to distribute and terms to satisfy can cause the process to drag on for years. Any claims or contests that are filed in probate court can also extend the process. 

Other factors that influence how long the probate proceedings could take include:

  • The amount of debt or taxes that need to be paid. 
  • The kind of assets involved in the estate. (For example, transferring ownership of a business or commercial real estate property may increase the length of probate)

How much does probate cost?

Multiple factors impact how much probate costs. The sum of all fees throughout the process is generally between 4% and 7% of the estate’s total value. A state’s probate laws dictate these fees, including by setting maximum limits.  

The costs involved in the probate process include:

  • Attorney fees. These will vary depending on the size of the estate and the tasks required of the attorney. Probate attorneys typically charge by the hour or through a flat fee arrangement, but some states allow the attorney to be paid a percentage of the estate. For a simple probate case, you can expect to spend between $3,500 and $7,000. 
  • Court fees. These vary depending on state laws, and typically range from a few hundred dollars to over a thousand dollars. Some states may determine these fees based on the estate’s value, with higher valued estates paying more. 
  • Executor fees. The deceased can specify in their will how much the executor will be paid. If they do not, a state’s laws will determine the cost. Some states may provide a percentage of the estate to determine how the executor will be compensated. The executor also has the ability to waive their payment.

Generally speaking, fees are likely to be higher for larger, more complex estates than smaller, simpler estates.

How to avoid probate

Probate can be a lengthy and expensive process. Here are a few steps you can take to ensure your assets avoid probate:

Ways to avoid probate include creating a trust, naming beneficiaries to your financial accounts, owning property jointly, and giving gifts
  1. Creating a trust - A living trust is a legal instrument that outlines where your assets will go upon death. A trustee will manage the trust assets, which could be financial accounts, real property (i.e. real estate), vehicles, or other valuable personal property. After your death, trust assets bypass probate and the trustee can swiftly transfer the trust assets to their named beneficiaries.
  2. Naming beneficiaries on your financial accounts - Most states' laws allow you to set up “payable on death” accounts for life insurance policies, retirement accounts, and bank accounts. These allow the bank or insurance provider to release the funds directly to the designated beneficiary, avoiding probate. Some states also allow you to designate beneficiaries for cars and real estate, making such transferable upon your death.
  3. Joint ownership of property - Jointly owning property allows it to transfer directly to the surviving owner, often a surviving spouse. You can retitle a property deed to include a loved one whom you’d like to pass the ownership to after your death in order to avoid probate.
  4. Giving gifts - Another way to bypass probate is to give gifts as assets that are no longer in a someone's possession when that person dies are not part of the deceased person's estate. Note, though, that a federal gift tax can apply to gifts over the statutory limit.

What is a probate attorney?

A probate attorney is a lawyer who helps the executory (or other persons involved in a probate case) to navigate the probate process. 

An estate planning attorney helps clients create estate plans and assist in drafting documents like wills, trusts, and powers of attorney. Probate attorneys are a subset of estate planning attorneys and assist with the administration of an estate after someone has passed away.

The type of assistance a probate attorney provides will depend on whether or not there is a will, but in either scenario, they can be a valuable resource and help make sure the estate is administered as efficiently as possible. 

Why would you need a probate attorney?

The executor of an estate can fully oversee the probate process without ever needing a lawyer in most states, which is more likely when the estate is smaller and contains common assets. But some states, like Texas, may require that you hire a probate attorney to avoid the unauthorized practice of law.

More generally, factors increase the likelihood that you will need a probate attorney, such as:

  • Contested wills can make probate lengthier & more expensive. A probate attorney can help you prepare a legal defense and ensure the deceased person's will is carried out as originally intended.
  • If significant debts and taxes need to be paid, you may want legal advice. Dealing with unpaid debts and estate taxes can become complicated. A probate attorney can ensure these payments are made quickly and in the proper order.
  • If the estate contains more complicated assets, such as trademarks or a commercial business, an attorney can provide guidance on managing, selling, or appraising these assets throughout the probate process.

For more complicated cases, choosing not to hire a probate lawyer can actually increase the probate costs and length of the process.

If you are handling a complex probate case, or generally feel like you could use some guidance, you may want to consider hiring an experienced probate attorney. (And if you speak with lawyers, here are the key questions to ask a probate attorney).

The final word on probate

So, what is probate? Let’s recap.

Probate is the process of distributing an estate's assets after someone passes. Numerous factors influence the length and complexity of the probate process. The size, complexity, and value of an estate, as well as the state you reside in, are all important factors when considering what the probate process may look like for you.

Generally speaking, smaller estates will have a smoother probate process. State laws may allow small estates to avoid probate altogether or to opt for a quicker version of the process. A larger estate, however, may be a different story. 

Depending on the complexity of the estate, hiring an experienced probate attorney to oversee your case can be crucial and save you time, money, and headache in the long run.