What is probate of a will?

If you recently had a loved one pass away and they left something to you in their will, you'll need to know the word "probate." Probate is a legal process in which the probate court validates a will and the executor distributes assets. There are a lot of things to know about probate, including what needs to be probated and how you can avoid it.

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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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Overview

  • Probate is the legal procedure in which the court validates a will and supervises the distribution of assets
  • Probate can take less than a year or longer depending on if the deceased had a will
  • There are several ways the probate process can be avoided, including having a will

If you are thinking of making a will, or already have one, you’ve probably heard the term probate before. Probate is the legal process in which the court supervises the administrating of a deceased person’s estate. It can occur with or without a will and involves authenticating the will, paying off the deceased’s debts, and distributing their assets to the beneficiaries of the will. 

What is probate?

Probate is the legal proceeding in which a will is evaluated to determine whether or not it’s authentic and valid. It also refers to the administering of the deceased person’s will or the estate of a deceased person that didn’t have a will (a deceased person is referred to as a decedent). Probate begins after the funeral and a death certificate has been procured.

During probate, all of the decedent’s assets are located and assessed for value. Then, their debts and taxes are paid and the rest of their estate is distributed by a named representative, also known as an executor. In some cases, the deceased has no will and things get a little more complicated. Because the wishes of the decedent are not recorded, the court handles the process and makes all of the decisions. The decedent is considered intestate, which just means they died without a will. That’s why you must have a will if you want certain people to have specific things.

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What are the steps of probate?

During probate, several steps happen.

Submit death certificate

For probate to start, the executor or representative needs to submit the will and a death certificate to the probate court. If there isn’t a will, then the decedent is intestate and the court controls the proceedings for the intestate probate. If you want the probate process to happen quickly, you’ll want to have a will outlining your wishes.

Validation

Next, the court will validate the authenticity of the will in order to determine if it’s the true will and testament of the decedent. It’s important that the will has the necessary witnesses and is notarized according to state laws. Having your witnesses sign a self-proving affidavit can speed up the validation process. An affidavit is a written statement confirmed by an oath that can be used in court as evidence.

Appoint an executor

If there’s a will, the decedent has usually named the executor of their will. The judge appoints this person to carry out the wishes detailed in the will. If there isn’t a will, then the judge will choose someone, typically a family member, to be the representative.

Post bond

Because the executor is responsible for money and assets, the court might require them to post a bond. This is something that the estate pays for unless you waive the requirement in your will.

Alert creditors and beneficiaries

Next, the executor will need to inform creditors and determine beneficiaries of the probate proceedings. Creditors have an allotted period of time to submit claims to the estate. If they don’t submit claims during that time frame, then they can no longer collect.

Appraisals

Executors must now appraise the value of the estate. This means property costs, inventory of personal effects, and valuing assets. You can hire appraisers to determine the real estate values. Basically, the monetary value of everything the decedent owned is added up.

Pay debts

Funeral expenses, medical bills, and taxes will need to be paid in this next step, along with creditor claims.

Distribute assets

The executor of the will takes the remaining assets after the debts are paid and distributes them to the beneficiaries. When there isn’t a will, the decedent’s heirs usually receive the assets according to their state laws.

Close estate

Finally, in order to close the estate, the executor will file a final accounting with the probate court. This reports all of the assets, the income of those assets, the debts paid, and distribution to beneficiaries. Once this is done, the probate court can release the executor from their duties and officially close the estate.

How long does it take to probate a will?

Normally, probating a will should take less than a year to complete if nobody contests the will and the court finds it valid. If the estate is small and there are no problems, it can even be done in six to nine months. Unfortunately, some probate proceedings can last a lot longer if there are a lot of assets, someone contests the will, there isn’t a will at all, or the estate has complicated assets, like businesses.

When is probate required?

The good news is not everything goes through probate court. Here is a list of things that are required to be processed through the probate process:

  • Non-titled property: Non-titled property is anything that you own that doesn’t have paperwork citing ownership. This can include appliances, clothes, furniture, and other household items that meet this definition. In order to eliminate probate, your will needs to name these items and the beneficiary to whom they will go.
  • Partner-owned investment property: If clear instructions aren’t given in the will on what to do with investment shares and the property is titled “tenants in common,” then probate is required.
  • Sole ownership property: Anything titled only in the decedent’s name needs to go through probate to determine ownership.
  • Inheritance where beneficiary predeceases the decedent: If the named beneficiary in your will dies before you and the will is not amended, then the court will step in to decide how this part of the estate will be administered.

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How to avoid probate?

If you’re trying to avoid probate, there are a few things you can do to keep your will from getting hung up in probate court. Firstly, if you name beneficiaries for items in your will, then these things can avoid probate and go straight to the beneficiary. Another way to skip the probate process is to put items into a living trust. A trust owns the items inside of it and anything that’s inside of a trust will also go straight to the named beneficiaries specified in the will.

For assets like real estate, bank accounts, vehicles, stocks, and retirement accounts, you can title them Payable on Death (POD) or Transfer on Death (TOD) and have them skip probate and go to the beneficiary, although some states might have restrictions on this type of titling. The other way to avoid probate would be to have a jointly-titled property with survivor’s rights. The property would go to the survivor after you die.

The only other way to get around probate is if the estate is small enough. Each state has different regulations, but if an estate’s value is less than a certain amount, it’s not required to go through probate court.

Can you go through probate without a lawyer?

The short answer is, yes, you can go through probate proceedings without a lawyer. If the estate is small and uncomplicated, or the will is extremely detailed, a lawyer might not be necessary, although you may want to consult with one just to be safe. If the decedent didn’t leave behind a will, or there are a lot of complicated assets, you might consider hiring a probate attorney.

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