Updated: October 12, 2022
The probate process is an important issue in estate planning and it comes up a lot. Information about the probate process is important to understanding some of the details of estate planning and helping you make decisions.
Probate is the legal process where the court or a judge validates a testor’s (your) will and other legal documents, pays any debts, and distributes money and property connected to your estate.
This is also when wills can be contested. All wills are required to go through the probate process, with two exceptions.
The process takes place in the Probate Court (Surrogate’s Court, Orphan’s Court or Chancery Court in some states) that has jurisdiction in the place where you live. However, assets in different states, typically real estate, must go through the probate process in that state.
The probate process may vary from state to state, including how soon the executor can petition for probate and the deadline for filing. The basic probate process includes:
Depending on the size and complexity of your estate, the probate process can be time-consuming and expensive — up to 10% of your estate.
Most states will have a simplified or “fast pass” for small estates that is less expensive and time-consuming. The probate court is still involved but has less control over the settling of the estate, and usually can be done without a lawyer.
Many states do not require probate if your estate is less than an amount set by that state.
Not everything in your estate needs to go through the probate process. It is important to be aware that all court proceedings will become part of the Public Record, so others will be able to see the content of your will and any trust in your name or created in your will.
The process begins after your death with your executor, an heir/beneficiary, or legal representative (administrator) appointed by a judge if you die without a will filing a petition for probate with the probate court along with a copy of your will.
The court will need to validate your will or applicable trust before any further steps are taken, so it’s crucial to make sure they are correct. If your will or trust is validated, the probate court will issue an order appointing someone to represent the estate, usually your executor or personal representative.
The court will then schedule and give notice of the court hearing to all of your heirs and beneficiaries. Some states also require this notice to be published in a local newspaper to notify others of the time of the proceeding. The newspaper notice will also serve as a notice for any creditors.
After this, the process usually involves supervising your executor to ensure that they carry out the wishes specified in the will, personal trust, and/or trusts created in your will. The tasks will take place in the following order.
For more details see Tasks of the Executor.
This may or may not require an appearance in court, depending on the size and complexity of your estate.
The probate court will also attempt to resolve any challenges to the will.
If your will is not validated, the probate process will proceed as if you had no will, beginning with designating an administrator to manage your estate. A relative or friend can request to be named as the administrator.
If you are concerned about the details of your estate getting out or saving your executor and beneficiaries time and money, aside from giving away money, possessions, and property before your death, there may be other ways to protect some or all of your assets from the probate process by converting them to forms that will not need to go through probate court.
Whether or not it is necessary for property and other assets to go through the probate process usually depends on who will be the official owner of the asset at the time of your death. The official owner of property is the person whose name is on the title or deed. However, probate will be necessary for property without titles/deeds and for certain designated beneficiaries that cannot own property. If the title and ownership is immediately transferred to an independent adult beneficiary such as with a trust, joint ownership, or other transfer on death document, you are not considered the owner by the probate court.
Any property or trust that is only owned by you and not able to go directly to a beneficiary.
The assets in any trust created in your will or any assets added to an existing trust through your will.
Jointly owned property by Tenancy in Common without Rights of Survivorship.
Personal property that does not have title documents such as bank accounts, furniture and appliances, clothing, household goods, and other personal items.
Any asset where the beneficiary is either you, the estate, a minor, or mentally incapacitated adult.
Not all of your assets are subject to the probate process and can pass directly to beneficiaries. Typically these assets will not be listed in your will, since each has its own document. It is best to store these documents with your will and other important paperwork. As with most other rules, check your specific state information to see which of these may or may not be allowed.
Other than direct gifts, there are other ways to prevent your assets from going through the probate process.
A trust is a fiduciary (financial) relationship where a trustee holds title to and manages your property or assets for the benefit of a third party, your heirs or other beneficiaries.
When you designate that an asset will automatically transfer to someone else at your death, it is not your personal asset and will bypass the probate process. This includes things such as:
All you usually need to do is request and fill out the payable on death forms available from your brokerage company or bank.
Property held jointly with rights of survivorship designates that the property will go to the surviving owner upon your death and therefore avoid probate. This may include Joint Tenancy with Rights of Survivorship, Tenant by the Entirety, and Community Property. Some only apply to spouses.
Many assets that are not already in a form that bypasses the probate process can be converted to a type that does not involve probate court by simply naming another person as the designated beneficiary.
Assets to consider converting to avoid the probate process include:
You can choose whether or not your assets will be subject to the probate process. To do so you need to understand the advantages and disadvantages and how they might apply to you.
Since the court is not involved, your trust settlement does not become part of the Public Record, so others will not see the terms of the trust.
Your wishes cannot be contested if there is no will or probate court to oversee the distribution of your estate.
Although it can be expensive and take a large amount of time and effort to set up and maintain a trust, there are many reasons you would consider doing this — especially if you have a large and/or complicated estate.
Even if your estate is under a certain dollar threshold, avoiding the probate process may still have financial benefits.
When the probate process is short and simple as with most small estates in most states, probate proceedings may have some benefit.