What is Probate?

What is Probate?

by Bilal Kaiser, January 2009

Probate is the legal process through which a deceased person's estate is properly distributed to heirs and designated beneficiaries and any debt owed to creditors is paid off. In general, probate property is distributed according to the decedent's last will and testament, if there is one, or according to state law if no will exists.

What Is Involved in Probate?

Probate involves several basic steps:

  1. Someone is appointed to administer the estate. If there is a will, the administrator is usually named in the will and is called an executor. If there is no will or no executor named in the will, the probate court appoints someone of its choice.
  2. The will is proven in court to be valid. State law governs the probate process, so it is important to follow state requirements for signatures, witnesses, and/or notaries to be certain your will is valid.
  3. The deceased person's property is identified and inventoried. Most assets cannot be sold or distributed until the probate process is complete.
  4. Properties are appraised.
  5. Any debts or taxes owed by the deceased are paid.
  6. The remaining assets are distributed according to the decedent's wishes if there is a will, or according to state law if there is not a will.

What If There Is No Last Will and Testament?

If there is no will, or if some of the estate's assets have no designated beneficiary, it is through the court-supervised probate process that the remaining assets will be distributed. The probate process also allows individuals to challenge the will, in which case the court decides the appropriate beneficiary of the assets in question.

How Long Does the Probate Process Take?

According to the American Bar Association, the probate process, on average, is completed six to nine months after a probate case is opened with the court. This can vary depending on the court and may take years if there are disputes over legality of the will or distribution of assets. In addition, there may be costs associated with the probate process (such as court fees), the responsibility for which may land on the executor of the decedent's will if they cannot be paid by the estate. For these reasons, many people get a living trust, which can help avoid probate and reduce the time it takes to settle an estate.

What Property Is Not Included in Probate?

There are some types of assets that do not enter probate (called non-probate assets), such as life insurance policies that designate a beneficiary or bank accounts with a "payable upon death" beneficiary specified as part of a legal contract. Real estate held in joint names with rights of survivorship can bypass the probate process as well. You can make almost all of your assets non-probate if you place them into a living trust.

Probate laws vary by state, and it is not always necessary for an estate to enter the probate process upon someone's death. One of the aims of estate planning is often to avoid the probate process in order to have assets distributed to heirs in a timely manner. Talk to your lawyer or estate planning professional if you need help determining the steps needed to ensure appropriate distribution of your estate after your passing.

For more information:

American Bar Association