Probate

What Is Probate?

Probate is a legal process in which a last will and testament is reviewed to determine whether it is authentic and legally valid. This term also refers to the administration of the deceased person’s will and their estate assets [1].

This process begins when the asset holder passes away, and the court appoints the executor defined in the will to carry out the probate. If there is no will, an administrator will be designated by the court to perform the process instead.

Probate involves appraising the deceased person’s property, paying any outstanding debts or taxes, and distributing the remaining estate as per their last testament. Read on to learn more about how this process works and why it's recommendable to avoid it if possible.

This process typically takes place in a probate court, which is a specialized court responsible for overseeing the administration of estates, the validation of wills, and the resolution of any disputes related to the estate.

Why Do Yoy Need a Probate?

Probate is not always required, but unless steps have been taken to avoid it, it’s very likely that it will be necessary to undertake this process. State probate laws can also play a big role in deciding whether probate is needed.

Therefore, it’s important to check your state’s specific laws when deciding whether to apply for probate. There are also certain situations in which probate is always required, the most common of which are listed below:

• If there is no will (also known as dying intestate)
• If there are problems with the will
• If there are no beneficiaries
• If it is specifically required by the estate

How Does the Probate Process Work?

There are various steps involved in the probate process. These will mostly be carried out by the executor of the will. This is a legal and personal representative that will be responsible for identifying and managing all the deceased person’s assets, including financial assets, real estate and personal property [2].

The executor is generally a financial advisor, and their details can be specified within the will. If there is no last testament, the state probate court will appoint someone else to carry out this role. Furthermore, if there are no rightful heirs or claims to the estate, all assets will be turned over to the state in a process called “escheatment”.

In general, probate proceedings can vary from state to state, but the following steps will typically be involved and carried out by the executor:

1. A petition needs to be filed to begin the probate
2. Legal notice must be given to the creditors, beneficiaries, and heirs
3. Assets are collected, inventoried, and appraised
4. Outstanding debts, taxes, and bills must be covered
5. The remaining assets are distributed to rightful beneficiaries
6. Legal documents such as receipts and records are submitted to the court, and the estate is then closed

Probate With a Will vs. Without a Will

The probate process differs significantly depending on whether or not the deceased left a valid will.

With a Will

If the deceased left a valid Last Will and Testament, the probate court will follow its instructions. This generally simplifies and expedites the process.

The executor named in the will is responsible for carrying out the estate administration. They must make sure that all debts are settled and assets are distributed according to the deceased’s wishes.

Without a Will (Intestate Probate)

If there is no will, the estate is subject to intestacy laws. These laws vary by state. The court will appoint an administrator to handle the estate, similar to an executor. Instead of following personal instructions, the court will distribute the assets according to state inheritance laws.

This means that close relatives—such as a surviving spouse, children, or other next of kin—will receive assets based on a predetermined hierarchy. Intestate probate can be more time-consuming and complex without a Will for guidance.

Whether or not a will exists, probate guarantees that assets are properly distributed. It also makes sure all legal and financial obligations are met before the estate is closed.

Disadvantages of Probate and How to Avoid It

Probate can be a lengthy process with a high amount of time investment for all parties involved. Because of this, court costs and fees can also quickly rise. While it depends on the state, it was found that probate fees can consume between 4% and 7% of an estate [3].

Taking into account the expenditures that arise from complicated probate processes, as well as the potential conflicts that can occur between the parties, it’s recommended to try to avoid this process.

Use the following methods when estate planning to minimize the chance of probate and to ensure a will is administered without legal challenges:

• Implement joint ownership of assets
• Minimize estate assets
• Set up a revocable living trust
• Name beneficiaries on life insurance policies and retirement accounts
• Use beneficiary deeds or transfer-on-death deeds and payable-on-death accounts if allowed within your state

Draft Your Last Will and Testament

[1] Probate - What You Need to Know. ACTEC.

[2] The Probate Process. American Bar Association.

[3] About Probate - How To Probate A Decedent's Estate. The Superior Court of California.