How does probate work?

If you want to know how probate works, it depends on your state and how quickly you want the process to conclude. Probate laws differ among states, and only 18 follow the Uniform Probate Code.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Mar 16, 2022

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  • The Uniform Probate Code has three types of processes, and the informal process is the quickest
  • Probate for your estate will take longer if your beneficiaries contest your will, you leave no document, or you have no known relatives
  • It is best to create a will, especially if your estate has a high total value

How does probate work, and is it always necessary after you die? Someone must initiate the process in court, and the probate court will oversee an equitable property transfer.

Probate is unnecessary if you leave behind a small estate or transfer your assets by other means. For example, if you and your spouse have your names on a deed, the surviving spouse owns the house without the need for probate.

The probate process is straightforward if you leave a will, but what happens during the process if you die without a will? Also, what happens when someone dies without known relatives?

Read on to know more about the probate process. Specifically, find out how the process usually transpires. You can also find information about property appraisal and taxes.

How does the probate process generally proceed?

What usually happens during the probate process? Most states will follow a unique probate process, but 18 states follow the Uniform Probate Code (UPC).

  1. Alaska
  2. Arizona
  3. Colorado
  4. Hawaii
  5. Idaho
  6. Maine
  7. Massachusetts
  8. Michigan
  9. Minnesota
  10. Montana
  11. Nebraska
  12. New Jersey
  13. New Mexico
  14. North Dakota
  15. Pennsylvania
  16. South Carolina
  17. South Dakota
  18. Utah

Under the UPC, there are three types of processes: informal, unsupervised formal, and supervised formal. The informal process is much shorter, and these are the general steps of that process if you have a will:

  1. The court appoints an executor to your estate.
  2. After the court’s appointment, the executor presents your last testament to prove the document is valid.
  3. The executor must identify your property.
  4. All interested parties receive notice of the probate process.
  5. The executor may sell your property based on the level of authority the court grants them.
  6. Beneficiaries pay debts and taxes connected to the property.
  7. The executor distributes any remaining property, money, and assets.

Below is a detailed explanation of the steps.

Appointing an Executor

If you have a will, you may name an executor, but that person cannot perform their duties without court approval. And the named executor must petition the court first.

Also, the court can name another person as an administrator if the named executor cannot perform their duties, the named executor declines the responsibility, or the beneficiaries do not accept the administrator.

Proving Your Will Is Valid

This process is usually uncontroversial, but your beneficiaries might contest the validity of your will. How does probate law help when heirs dispute the document?

Lawyers will usually look for three criteria to determine if a will is valid:

  • It is in writing.
  • You wrote your signature and dated the document.
  • Two witnesses saw you sign the will, or (if you live in Colorado and North Dakota) someone notarized it.

Outside of these criteria, it can be nearly impossible to prove that your will is invalid. For example:

  • Did someone prompt you to change their will to cut out one or more beneficiaries?
  • Were you in your right mind when you made the changes?
  • Did someone forge your will?

The court may ask for a handwriting analysis on the signature or other handwritten parts of the will. But outside of finding forgery or undue influence, the court is likely to accept the document as valid.

Identifying Your Property

All parties perform an inventory and must determine your property’s value. Determining the value of your property is a crucial step for three reasons:

  • The court considers all assets, including liquid assets, to determine the total monetary value of your estate.
  • Knowing the value of a home is helps a beneficiary if they want to live in that home because they will pay property taxes.
  • The executor or (other) beneficiaries might need to sell it.

But how much is one’s property worth after their death? How much is real estate is worth, for example? That’s why interested parties need to hire a professional appraiser to determine the value of your property at the time of your death.

Paying Debts and Taxes

Your unsettled debts can count against the amount someone inherits. Also, some states and the federal government assess inheritance and estate taxes.

Six states have inheritance taxes:

States With an Inheritance Tax
StateInheritance Tax Rate
New Jersey0%-16%
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Twelve states and the District of Columbia have estate taxes:

States With an Estate Tax
StateTax Exemption ThresholdEstate Tax Rate
Connecticut$7.1 million10.8%-16%
District of Columbia$4 million11.2%-16%
Hawaii$5.5 million10%-20%
Illinois$4 million0.8%-16%
Maine$5.8 million8%-12%
Maryland$5 million0.8%-16%
Massachusetts$1 million0.8%-16%
Minnesota$3 million13%-16%
New York$5.9 million3.06%-16%
Oregon$1 million10%-16%
Rhode Island$1.6 million0.8%-16%
Vermont$5 million16%
Washington$2.2 million10%-20%
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As you can see, Maryland has both an inheritance and an estate tax. Also, The Internal Revenue Service requires an estate tax return for inherited estates worth at least $12.06 million, but the threshold is lower in the states with this type of tax.

Distributing the Inherited Property

If your heirs have no disputes over the will, the executor can easily follow your will’s terms. After distribution, all parties can close this process by signing and filing documents.

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How does probate work if you die without a will?

Also, how does probate work if you die without known relatives?

The probate process will generally follow similar steps whether there is a will or not, but there are some caveats if the latter is true.

Above, we mentioned that the court could name someone as an administrator if the named executor declines or cannot fulfill their duties. The court will also appoint an executor if you have none. The title will likely fall upon your spouse, a child, or other relatives.

After the court approves an executor, all interested parties will try to find any documents you had listing your properties or anything that indicates how you want your survivors to divide your property.

Without a will or other testaments, it will be hard to determine your wishes. Still, the process will continue by your state’s probate code until your survivors distribute your property.

If you die without known relatives, your state will try to locate any heirs you have by first determining your next of kin. Below is the priority:

  • Spouses
  • Children
  • Parents
  • Siblings
  • Grandchildren
  • Nieces and nephews
  • Grandparents
  • Aunts and uncles
  • First cousins
  • Great grandparents
  • Great aunts and uncles
  • Second cousins

If the state cannot find a next of kin, they have escheat laws and take your property and assets.

How Probate Works: The Bottom Line

Your assets will go through probate if you leave behind an estate with significant value or you do not name any heirs with a will. To avoid probate, make the process easier for your survivors, or guarantee you leave a legacy, here are a few things you can do:

  • Write a will as soon as possible. If you have valuable assets, now is the time to determine whom you would like to possess those assets after you pass. Also, follow the steps for easy validation.
  • Set up transfer-upon-death assets. For example, you can name a beneficiary on your deed or car title.
  • Create a joint bank account with someone you trust, like your spouse. Alternatively, set up a payable-upon-death account that can transfer to your children or other heirs.
  • Consider buying a life insurance policy. If the cost is worth it to you, your beneficiaries will have some financial security after you pass.

Now that you know how probate works, are there any other law questions you have? Take some time to read more of our estate planning law articles. Also, get some quotes for civil law attorneys if you need direct guidance.

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