What Is Probate: A Complete Guide to How It Works and How to Avoid It

We normally only hear of probate in the context of a loved one’s passing, so it makes sense that it can be a difficult topic to broach. It’s also a legal process, which adds complexity and anxiety during an already grief-stricken time. Trust & Will conducted a recent study that revealed 60% of Americans are unsure what the probate process entails or don’t understand the process at all. This guide breaks it all down so you won’t be intimidated and can feel confident dealing with estate planning matters.

Simply put, probate is a court-supervised legal process of settling a deceased person’s belongings, also known as their estate. This includes validating and reviewing their will, distributing assets to beneficiaries, and paying off any debts or taxes. Throughout this guide we’ll deep dive into the probate process so when the time comes for you or your family to deal with it, you’ll be thoroughly prepared. This will hopefully save your loved ones significant money, time, and emotional stress. We’re going to discuss the details of probate, when it’s required, how it works, the associated costs and timelines, and practical strategies to simplify the process, or avoid probate entirely.

#What is Probate?

Probate is the legal process that happens after someone passes away. It is court-supervised and determines how the deceased person’s financial affairs are settled. This procedure includes the individual’s assets, debts, and any owed taxes.

"Probate essentially gives legal authority to execute the deceased person's estate in an organized and legally binding manner," says Abel Soriano, the founder and managing attorney at Soriano Law in Salem, Oregon. "Its primary purpose is to ensure that the deceased person's assets are distributed according to their wishes, as outlined in a will, or according to state law if there is no will."

"Probate serves as a safeguard to ensure the estate is administered fairly," adds Soriano. "Without probate, disputes could arise over who inherits assets, whether debts have been properly paid, or even whether a will is valid."

#What is the Purpose of Probate?

The process of probate resolves many financial and legal matters.

• Validating the authenticity of the decedent’s will (if they had a will to begin with)
• Transferring ownership of the decedent’s property, automobiles, bank accounts, investments, and any other possessions (including pets) to the appropriate beneficiaries
• Paying any debts that are owed by the deceased individual and also collect any debts owed to them
• Settling outstanding tax obligations
• If the decedent had minor children, probate establishes who becomes the legal and financial guardian of the children
• Provides legal protection to all involved parties

Probate is different from your will. The will is a legal document that expresses your explicit wishes for how your assets should be distributed upon your death. Probate, however, is the legal process that is used to carry out those wishes. It is required whether or not you have a will.

#What is a Probate Court?

A probate court is a specialized court that oversees the administration of estates after death. It is also called a surrogate court. The probate court, as mentioned earlier, will validate a will if it exists, appoint executors or administrators, ensure creditors are paid, and confirm that assets are distributed according to the will or state intestacy laws. In many states, probate courts handle guardianships, conservatorships, and mental health commitments as well.

#When is Probate Required?

Probate is usually required when someone dies owning assets solely in their name without designated beneficiaries or transfer mechanisms. The specific triggers for probate vary by state, though, and not all assets are required to go through probate.

#What Assets Go Through Probate?

Assets that typically are required to go through probate include:

• Real estate owned solely in the deceased person’s name
• Bank accounts that do not have a payable-on-death (POD) designation or are not held jointly with rights of survivorship
• Investment accounts that do not have a transfer-on-death (TOD) designation or are not held jointly with rights of survivorship
• Vehicles that are titled only in the deceased person’s name
• Personal property including jewelry, furniture, and collectibles if they are not in a trust
• Business interests that are owned individually
• Any assets where the deceased is named as the sole owner

#What Assets Avoid Probate?

There are many assets that can bypass probate entirely, they include:

• Assets that are held in a trust
• Life insurance policies with named beneficiaries
• Retirement accounts such as 401(k)s and IRAs that have named beneficiaries
• Bank accounts with POD designations or held jointly with rights of survivorship
• Investment accounts with TOD designations or held jointly with rights of survivorship
• Real estate that is owned as joint tenants with rights of survivorship or as tenants by entirety
• Assets with TOD deeds
• Businesses with ownership interests in the name of a trust or subject to a buy-sell agreement

#Probate vs. Non-Probate Assets Comparison

#How Does the Probate Process Work?

The probate process varies from state to state. The executor, who is the personal representative of the estate, is responsible for initiating the process. This person is normally named by the decedent in the will. If there is not a will in place, then it’s most often a family member, such as a spouse or a child.

According to Soriano, probate generally includes the following steps:

#Step 1: Obtain the Death Certificate

As the executor of an estate, the first step you’ll need to take is to obtain multiple certified copies of the death certificate. You will need to use these copies many times throughout the probate process and for tasks such as accessing accounts, claiming life insurance benefits, and handling any other financial matters. It is recommended you obtain a minimum of 10 certified copies from the funeral home or vital records office in your county.

#Step 2: File the Will and Petition with the Court

The executor or personal representative’s responsibility after obtaining death certificates is to initiate the probate process. You will need to contact the deceased person’s county probate court and file their death certificate, will (if applicable), and petition to officially begin the probate process. If there are unique circumstances surrounding the estate, there might be a few different types of petitions available to you, but a probate attorney can properly guide you to determine which type is most appropriate.

#Step 3: Court Appoints the Personal Representative

The personal representative, also known as an executor, is essentially the captain of a deceased person’s estate journey. They are responsible for handling the duties associated with the probate process, although they may also have assistance from a lawyer.

If the decedent had a will in place, the executor was likely already named, but the probate court judge will formally appoint this individual. The judge will issue letters testamentary if there’s a will, or letters of administration if there is no will. These documents give the personal representative the legal authority needed to act on behalf of the estate. If there is no will, the court will appoint a personal representative as administrator. This is most often the closest relative.

The personal representative has a fiduciary responsibility to act in the best interest of the estate and the beneficiaries. They must manage the assets in a prudent manner and follow all legal requirements.

#Step 4: Notify Beneficiaries and Creditors

The personal representative will then locate and notify any potential beneficiaries and creditors. If the deceased person had a will, the beneficiaries are often easier to find and inform. Creditors, however, can be more difficult to locate. Most states do require the personal representative to publish a notice in local newspapers to alert potential creditors. The creditors have only a limited amount of time, in the range of three to six months, to file claims against the estate.

#Step 5: Inventory and Appraise Assets

Next is arguably the most important duty for the personal representative. Their job is to distribute assets and settle any open debts or taxes on behalf of the deceased person. This begins with identifying and listing the decedent’s assets including real estate, bank accounts, and personal property. Taking an asset inventory can be quite time consuming as every checking and savings account, investment account, valuable personal property, and debt needs to be accounted for.

A tool like Monarch can make it simple to see all accounts across more than 13,000 financial institutions, all in one place. Monarch’s net worth tracker makes knowing where everything is easy and less of a burden for your family. You can add multiple members to your Monarch household, each with their own login, if you want them to have access to your Monarch data. If you work with an estate planning attorney, Monarch gives you the ability to share your financial dashboard directly with the professional for seamless collaboration.

For personal property, business assets, real estate, or any collectibles, the personal representative of an estate may need to hire an appraiser to determine the fair market value of the items. The documented inventory of assets must be filed with the probate court.

#Step 6: Pay Outstanding Debts, Taxes, and Expenses

Before any assets can be distributed, expenses and costs must be paid from the estate’s assets. Debts, taxes, funeral home fees, and medical costs all must be paid, as well as any reasonable fees the executor may charge to cover the cost of their time and effort in settling the estate. It’s crucial for the personal representative to pay close attention to this step in order to protect the beneficiaries from any creditors in the future. The personal representative will also need to file a final income tax return for the deceased person. If the estate is large enough and meets the current estate tax thresholds, estate tax returns must also be filed.

#Step 7: Distribute Assets to the Beneficiaries

After all the debts, taxes, and expenses are paid, the personal representative can then distribute the remaining assets to the proper beneficiaries determined by the will or state intestacy laws. The personal representative must obtain receipts or signed documents from beneficiaries acknowledging they did in fact receive their inheritance.

#Step 8: Close the Estate

The last step in the probate process to officially close the estate. When everything is divided appropriately and all final paperwork is signed, the personal representative then files a final accounting with the court proving all income received, expenses paid, and distributions made. The probate court will review and, if all is well, issue an order officially closing the estate and releasing the personal representative from their duties.

#Probate with a Will vs. Probate without a Will

The probate process will differ significantly depending on whether the deceased person left a valid will or not. First, let’s have a look at how probate works with a will in place.

#How Probate Works with a Valid Will (Testate)

When someone dies with a valid will, they die “testate”. In this case:

• The will names an executor to manage the estate
• The will specifies which beneficiaries receive which assets
• The probate court validates the will’s authenticity
• The executor follows the instructions laid out in the will
• Beneficiaries receive their designated inheritances
• The process is typically more straightforward and quicker

Remember, even with a will, probate is still required to legally transfer assets and validate the document.

#How Probate Works without a Will (Intestate)

If a person dies without a will, they die “intestate”. In this scenario:

• The state’s intestacy laws determine who inherits the assets
• The court appoints an administrator (because there is no named executor)
• Distribution follows a predetermined legal formula
• The process is typically longer and may be more complex and time consuming
• Family members might disagree about how assets are ultimately distributed
• People you may not want to inherit assets might receive them

#Who Inherits When Someone Dies Intestate?

When a person dies without a will, state intestacy laws will determine the inheritors of assets. Specific rules do vary by state, but the typical order of inheritance is as follows:

• Surviving spouse. If there is a surviving spouse, they may inherit a significant portion or all of the estate, even if it was a very recent marriage or re-marriage
• Children. The children of the deceased share equally in the estate’s assets, or their share if a spouse also inherits.
• Parents. If there is no spouse or children, any surviving parents would be next to inherit.
• Siblings. If there are no spouses, children, or parents, any siblings would then be next.
• Extended family. This would include grandparents, aunts, uncles, cousins in order of closeness to the deceased.
• The state. If no living relatives are found, assets “escheat” to the state.

In community property states, there are different rules for married couples. In these states, assets acquired during marriage are considered equally owned by both spouses. Upon the death of a spouse, the deceased person’s half of the community property passes through their will or intestacy, but the surviving spouse retains their half. Separate property, meaning assets owned before the marriage or received via gift or inheritance, is treated differently.

If you want to avoid the state determining how your assets are distributed and handled, it is imperative to put a will in place. When you skip estate planning, your control is limited and how your assets are distributed might not align with your wishes.

#How Long Does Probate Take?

A common question regarding probate is how long the process takes. Ultimately, there is no definitive answer and is based on several factors. For simple estates, it may take 3-9 months. For an estate of average size and complexity, you can expect 9-12 months. For complex estates, the process can take one to two years. If an estate is contested, the process could take years, perhaps as many as five or more.

The probate timeline is affected by the following factors:

• Whether the deceased had a will
• The size and complexity of the estate
• If the will is being contested
• The number of beneficiaries involved
• If estate tax returns are required
• The effectiveness and efficiency of the personal representative
• Court backlogs in the jurisdiction
• If there are claims filed by creditors
• Disputes among the beneficiaries

According to a study conducted by Trust & Will, 37% of survey respondents said they were unaware of how long probate lasts. The average probate is 20 months. Even in the best of circumstances, probate takes significant time. The court must allow a minimum time period for creditors to file claims and for other various legal requirements that cannot be rushed.

#How Much Does Probate Cost?

Probate can be quite expensive, and often families are shocked by the final cost. According to a Trust & Will study, a whopping 56% of Americans have no idea what probate costs. Typically, 3-7% of the total value of the estate is what you can expect.

#Typical Probate Costs

Here’s a breakdown of costs associated with the probate process and how much you can reasonably assume to pay.

• Court filing fees: $200-$1,000 depending on the jurisdiction and size of the estate
• Attorney fees: These can be calculated in various ways.
  • Flat fee: $3,000-$7,000 for simple estates
  • Hourly rate: $250-$500+ per hour
  • Percentage of estate: 2-5% in some states
  • Statutory fees (California, for example, uses a sliding scale based on the value of the estate)
• Executor fees: Personal representatives are entitled to compensation for their responsibility. This can range from 2-5% of the estate’s value, a reasonable hourly rate, or an amount specified by state law.
• Appraisal fees: $300-$1,000+ per valuable item
• Accounting fees: $500-$3,000 for estate tax returns and any necessary accounting
• Bond premiums: If required by the court, this will typically cost 0.5% of the estate’s value annually
• Publication fees: $100-$500 for any legal notices published
• Miscellaneous costs: This can include travel, asset storage, property maintenance and upkeep, fees for copies and postage, etc.

#Example Cost Breakdown

For an estate valued in the range of $500,000, you might expect the following breakdown of costs:

• Court fees: $500
• Attorney fees (4%): $20,000
• Executor fee (3%): $15,000
• Appraisals: $1,500
• Accounting/Tax Preparation: $1,500
• Other miscellaneous costs: $1,500
• Total Costs: $40,000 (8% of the estate’s value)

This leaves $460,000 of value in the estate for the beneficiaries. This is yet another important reason why many families seek to avoid probate for their assets when possible.

#What Does an Executor Do?

The executor, also known as a personal representative or administrator, carries substantial responsibility during the probate process. Understanding these duties is essential whether you’re named as the executor or while creating your own estate plan.

#Key Executor Responsibilities

Let’s review the key responsibilities held by an executor so you know exactly what to expect.

Administrative duties:

• File the will and petition the probate court
• Obtain letters testamentary or letters of administration
• Set up an estate bank account
• Obtain tax identification number for the estate
• Maintain detailed records of all transactions

Asset management:

• Locate all estate assets
• Secure and protect all property
• Maintain insurance on real estate and vehicles
• Manage investments in a prudent manner
• Collect money owed to the deceased individual

Communication and notifications:

• Notify beneficiaries who are named in the will
• Publish notice to creditors
• Respond to any creditor claims
• Keep beneficiaries informed throughout the process
• Communicate with the probate court

Financial obligations:

• Pay any valid creditor claims
• Pay any taxes due, mortgages, and insurance bills
• File a final income tax return
• File an estate tax return if applicable
• Pay funeral and burial costs

Distribution and closing of the estate:

• Distribute remaining assets according to the will or intestacy law
• Obtain receipts from beneficiaries
• File the final accounting with the probate court
• Request the court order closing the estate

Serving as an executor is time consuming and can be complex. It may take between 100-200 hours of work over the course of the probate process, which is why it is permitted for executors to be compensated fairly.

#Seven Ways to Simplify or Avoid Probate

Lucky for us, there are ways to simplify the probate process for yourself and your loved ones. You may even avoid it entirely. “One of the best ways to simplify the probate process is by planning ahead,” says Soriano. The strategies below will help you minimize the burden on your family.

1. #Place Your Assets in a Living Trust

The most widely used option to bypass the probate process is by using a living trust. “When assets are placed in a living trust, they pass directly to the beneficiaries without the need for probate,” stated Soriano.

Even if you have a will, you’ll still need to undergo probate to validate it. However, with a living trust, everything you own will legally belong to the trust. As the trustee, you control the trust. When you die, or become incapacitated, your successor trustee(s) gains control of your trust and may distribute assets, pay your debts, and so on, according to the wishes outlined in your trust. The court will not be involved at all.

Living trusts are especially valuable if you own real estate in multiple states, as it can help you avoid ancillary probate (separate probate proceedings in each state where you own your properties).

#2. Establish TOD or POD Designations

Transfer-on-death (TOD) or payable-on-death (POD) designations work similarly to a living trust, but they are designed specifically for certain investment and bank accounts. A POD designation on your bank accounts allows the account to pass directly to the named beneficiary without probate. Similarly, a TOD designation on your investment accounts or even a vehicle title (in some states), will transfer ownership to the beneficiary directly upon your death.

TOD and POD designations are not as comprehensive as a living trust, so please speak with an attorney to determine which estate planning tools are more appropriate for you and your family.

#3. Name Beneficiaries on Your Accounts

You can also help simplify, or perhaps avoid, the probate process by naming beneficiaries on your accounts. When you don’t identify beneficiaries on accounts, ownership typically passes through probate or to the closest family members under intestacy laws.

You need to select beneficiaries for your bank accounts, investment accounts, life insurance policies, and retirement accounts. This will make it abundantly clear who you want to receive these assets when you pass away.

With a living trust, you can name the trust as the beneficiary of some accounts, particularly in cases where you can’t retitle the account directly to the trust (retirement accounts are an example).

After every major life change, be sure to review your beneficiaries. Marriage, divorce, births, and deaths should trigger a review. Outdated beneficiary designations can cause unintended consequences. There have been plenty of ex-spouses receiving life insurance proceeds simply because the beneficiary was never updated.

#4. Gifting Assets During Your Lifetime

You can reduce the size of your probate estate by gifting assets to loved ones and charities while you are still alive. The IRS allows you to gift up to $19,000 per person each year without triggering the gift tax reporting requirements. For married couples, the amount doubles to $38,000 per person.

Strategic gifting can help reduce the value of your probate estate but also minimize potential estate taxes. On the emotional side, gifting while you’re still alive allows you to see your loved ones benefit from your generosity and support them when they need help the most.

Before making any large gifts, be sure to consult with a tax professional. There are complex rules around the lifetime gift tax exemption and potential impacts on things like Medicaid eligibility.

#5. Use Small Estate Procedures if Eligible

Many states offer simplified probate procedures for estates below certain thresholds. These “small estate” procedures are faster, less expensive, and require less court involvement than regular probate. Small estate thresholds vary significantly by state and are subject to change. Be sure to research the current threshold for your state.

If you qualify for small estate procedures, your heirs may be able to collect assets by presenting a simple affidavit to banks, investment firms, or other financial institutions without formal court proceedings. This alone can save thousands of dollars and months of delay.

#6. Review Your Estate Plan Regularly

It’s essential to regularly review and update your estate plan to account for any major life events. Most Americans prefer to enlist the help of an attorney for this process, especially since probate laws differ by state.

You should review your estate plan:

• Every 3-5 years no matter what
• After getting married or divorced
• After the birth or adoption of a child
• After the death of a beneficiary or executor
• After any significant financial changes
• After moving to a new state
• After changes in tax laws

Outdated estate plans can be extremely problematic, almost as bad as no plan at all. Beneficiaries may change, executors can pass away, and state laws evolve. It’s up to you to review and update as needed.

#Communicate Your Plans to Your Family

Talking about the inevitable end of our life and the lives of our loved ones is extremely difficult and most of us just prefer to push the conversation down the road. A caring.com study revealed that in recent years fewer and fewer Americans have prepared any estate planning documents at all. Just like we’re supposed to eat vegetables and exercise daily, estate planning isn’t easy but it’s absolutely essential for each and every one of us.

It’s equally important that you communicate your wishes to your family members as soon as possible. Prioritize these conversations and don’t assume you’ll have the chance to explain it all later.

You should create a “letter of instruction” to outline all of the details of your estate such as:

• The location of important documents (wills, trusts, deeds, titles)
• Names and contact information of your attorney and financial advisors
• Account information and passwords
• Location of safe deposit boxes and keys
• Funeral and burial preferences
• Digital asset information (social media, email, and website logins)
• Special instructions for sentimental items

Again, avoiding these uncomfortable but necessary conversations is natural. According to attorney Soriano, “a little preparation now can save a great deal of time, expense, and stress for your family later.”

#How Probate Laws Vary by State

Probate laws vary from state to state, which is a great reason why 65% of Americans say they’d seek professional guidance to navigate the probate process. The probate laws for each state are collected as “Estate Codes” or “Probate Codes”, dictating that state’s specific laws surrounding topics like intestacy, living wills, power of attorney, and so on.

#The Uniform Probate Code

To bring more consistency to estate administration, the Uniform Law Commission created the Uniform Probate Code (UPC) in 1969. The UPC standardizes probate procedures, simplifies estate administration, and makes the process more accessible to families.

While the UPC was intended to be adopted by all 50 states, only 18 states have fully adopted it as of 2026, and the other states have adopted portions of it or their current laws are heavily influenced by it. Even among UPC states, variations exist because states can adopt the code but with modifications. In general, UPC states offer more streamlined probate processes than non-UPC states.

#Small Estate Thresholds

As stated in a previous section, states may have small estate thresholds to make the probate process easier. These are subject to change and vary from state to state. It is important to research your particular state’s small estate threshold.

#Community Property States

There are nine states that follow community property laws as opposed to the more common common law. These states include: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

In community property states, assets that are acquired during marriage are considered equally owned by both spouses. Upon the death of a spouse, the deceased person’s half of the community property passes through their will or intestacy. The surviving spouse keeps their half. Property that was acquired before the marriage or through gifts or inheritance is considered separate property. It is crucial to understand your state’s property laws to implement an effective estate plan.

#Finding Your State’s Probate Laws

Cornell Law School has compiled a list of links to the unique probate codes for each state and the District of Columbia. You can access these resources through Cornell Law School’s Legal Information Institute.

Interpreting probate statutes can be complex. It benefits most families to consult a local estate planning lawyer who understands the ins and outs of each state’s laws.

#Plan Ahead to Protect Your Family

Probate doesn’t have to be overwhelming or prohibitively expensive. Proper planning can substantially simplify the process, or help you avoid it. A few key takeaways from this guide:

• Probate is the court-supervised process of settling an estate after a person’s death.
• It typically takes anywhere from 3-24 months and costs 3-7% of the estate’s value.
• Not all assets have to go through probate. Beneficiary designations and trusts help bypass the process.
• Living trusts are the most comprehensive way to avoid probate.
• Small estates may qualify for simplified procedures in your state.
• Estate planning saves your family time, money, and stress during a time of immense grief.

Estate planning is more than just distributing assets after a death. It’s about protecting the people you love from unnecessary burdens during a difficult time in their lives. Start the conversation about your estate planning wishes today. Document those wishes clearly and carefully. Consider using tools like Monarch to keep your financial information organized and accessible to those who will eventually need it the most.

The most important thing you can do is take action. Don’t wait until it’s too late to protect your family from the difficulties of probate.

#FAQs

What is probate?
Probate is the court-supervised legal process of settling a deceased person’s estate. This includes validating their will (if applicable), paying any debts or taxes, and then distributing assets to beneficiaries according to the will or the state’s intestacy laws.

How does probate work?
Probate works through a series of steps. First, a petition is filed with the court. Then a personal representative (executor) is appointed. Creditors and beneficiaries are notified. Assets are then inventoried, debts and taxes paid. Lastly, remaining assets are distributed and the estate is closed. The process is overseen by a probate judge.

When is probate required?
Probate is required when someone who owns assets solely in their name, or without beneficiary or transfer designations dies. Assets like a jointly owned home, life insurance with named beneficiaries, and accounts held in a trust will typically avoid probate.

How long does probate take?
On average, probate can range from 6-24 months, but highly depends on the estate’s complexity and size. Other factors such as court backlogs, the efficiency of the executor, and if a will is contested can greatly affected the timeline. Most simple estates may close in 6-9 months. Highly complex or contested estate’s may take multiple years.

How much does probate cost?
Probate usually costs anywhere between 3-7% of the total estate’s value. This includes all court related fees, attorney costs, executor compensation, appraisal fees, and other administrative expenses.

How can I avoid probate?
You can avoid probate by using a living trust, naming beneficiaries on accounts, putting TOD or POD designations on accounts, owning property in joint tenancy, and gifting throughout your lifetime. For small estates, simplified procedures might be available in your state.

What is the purpose of probate?
Probate serves several purposes. First, it is to validate the deceased person’s will. Next, probate ensures debts and taxes are paid, fraud is prevented, disputes are resolved, and assets are transferred to the rightful heirs.

What is the difference between probate and estate administration?
These terms can be used interchangeably. Estate administration is the broader process of handling all aspects of a deceased person’s affairs. Probate refers to the specific court-supervised portion of that process.

What triggers probate?
Probate is triggered by the death of someone owning assets titled solely in their name, or without beneficiaries or transferable designations. A will doesn’t avoid probate, but it does direct how assets should be distributed through the probate process.

What is a probate court?
Probate court is a specialized court that oversees estate administration after a person’s death. It takes on various tasks including the validation of wills, appointments of executors or administrators, proper asset distribution, dispute resolutions, and always protects the interests of any involved minor children. In some states this may also be called surrogate courts or chancery courts.