Developing a last will is part of any person or family's financial planning process in preparation for when the owner passes. Probate of a will describes the legal process of naming and distributing assets to family members or other named persons after an individual's death. The process can be time-consuming and lengthy if not given proper consideration during the writing of the will.If a will has been written, an executor or personal representative has been preassigned to the probate process by the decedent. However, an administrator can be assigned by the probate court in the event the will is not available or was never written. Part of the responsibility of the executor or the administrator is to organize all the assets owned by the decedent to ensure that there are no lingering liabilities left on their estate, along with ensuring that each beneficiary receives their due assets.An asset in probate proceedings can include real estate, artwork, vehicles, bank accounts, personal property, and other investments. Do you have to probate a will when these kinds of assets are involved? It is possible for the administrative process to move forward with or without a will, but it will be more complicated.

Is it possible to avoid probate?

Do all wills go through probate? It's imperative for the heirs of an estate to know if a probate is required after a death. The more complicated the estate, the more time it will take to settle the case and distribute the assets.There are some disadvantages to going forth with a probate. The probate process is usually more expensive without a will than with a valid will. However, expect the time and cost required to complete the probate process to be high in either scenario. For example, the Superior Court of San Diego in California states that the initial legal fees related to the filing of a probate is $435, with additional fees added on as needed. It is also important to note that since probate court proceedings are publicly recorded, not going through probate would ensure that the settlement remains private.If you want to avoid probate court, it's important to ask if it's required after the official publishing of the death certificate of the testator, as the laws in each state are different. In some states, you will find that going through with the probate process depends upon the value of the estate. In Texas, if the value of the estate is less than $75,000, then the probate process is not necessary.It is possible for the estate's assets to be claimed using alternative legal actions, like an affidavit, if the estate is deemed small enough to bypass the probate process. If it is considered that the decedent's debts exceed their assets, then avoiding probate may be a possibility. According to the State Bar of Wisconsin, some estates and certain types of assets are not required to go through probate. That is why checking with your state laws is important.

What does the probate court process look like without a will?

Once a person dies without a will, they are said to have died intestate. It is also possible for an estate to be named intestate if the court deems the will to be invalid. If the decedent's estate is considered to be intestate by a court, the probate process will include the distribution of the decedent's assets in accordance with state laws. If the decedent has no assets, a probate may not be necessary.

Do All Wills Need to Go Through Probate?

Q: how do you get around probate?

to avoid probate, you can consider options such as establishing a revocable living trust, gifting assets to loved ones while alive, or keeping your estate small. these methods can help bypass the probate process and ensure a smoother transfer of assets.

Q: which of the following items will pass through probate?

assets titled in the decedent's sole name, assets owned but not jointly owned, not payable-on-death, and without beneficiary designations or left out of a living trust, are subject to probate. this can include bank or investment accounts, as well as stocks and bonds.

Q: what is a child entitled to when a parent dies without a will?

when a parent dies without a will, children typically inherit after the surviving spouse according to state intestate succession laws. the exact share depends on your state's specific rules and whether other heirs exist.

Q: what is the purpose of probate?

probate serves as the formal legal process that validates a will and assigns an executor to manage the estate and distribute assets to beneficiaries. this recognition helps ensure that the deceased's wishes are carried out appropriately without leaving room for confusion or disputes.

Q: what is probate, and who initiates it?

probate is the formal legal process of dealing with the estate of a deceased person, and it is initiated by the executor named in the will or an administrator if no will exists.

The death of a loved one can leave questions surrounding the estate plan of the deceased. Is it necessary to go through probate proceedings if there is a will? Each county and state handles probate differently, but this is an overview of the process.

Start your will today

Start Now

Excellent

A woman smiling over a call and noting down important information on estate plan on her notepad.

Last Wills

Start Now

Halona Black

Halona is a content marketing strategist who works with the tech industry. She is also an author/coach to global leaders who seek support writing books. Aside from writing, Halona has lived in over 13 countries and enjoys teaching meditation to those who want a deeper connection to their creativity. You can find her online at LinkedIn.

Key takeaways of probate court

Probate entails a legal process overseen by a court to validate wills, appoint executors, and ensure proper distribution of a deceased person’s assets, which can be complex and costly depending on the estate and any disputes.
Wills do not always require probate; smaller estates and those with extensive planning might avoid the process. State laws, joint ownership, beneficiary designations, and living trusts can allow assets to bypass probate.
State laws heavily dictate the probate process, including asset distribution, executor duties, and intestate succession, while probate alternatives for different assets and legal representation can streamline or negate probate proceedings.

Understanding the probate process

Not all wills have to go through probate. Whether probate is required depends on factors like state laws, the size of the estate, how assets are titled, and the estate planning tools used by the deceased. However, when probate is necessary, it's the legal procedure that validates a will, appoints an executor, and ensures proper distribution of assets.

The probate process starts with the executor named in the will, or an administrator when no will exists, and encompasses several steps overseen by the probate court.

The court’s responsibilities include:

Validating the will
Appointing the executor
Providing them with the legal power to distribute assets and settle any remaining liabilities such as funeral expenses, medical bills, taxes, and other debts

Yet, probate isn’t free. The costs can be quite substantial, depending on the complexity of the estate and potential disputes over the will. These costs encompass:

Court fees
Potential probate attorney fees
Expenses for filing notices to creditors
Probate court judge overseeing the entire process

There’s an easier way to make a will

Our step-by-step online tool helps you make key decisions with confidence, at your pace.

Start planning

The role of probate courts

Probate courts' responsibilities go beyond mere validation of a will. After confirming a will’s authenticity, the probate judge and court:

Appoints a representative, typically the executor named in the will
Issues testamentary letters to the executor, giving them authority to manage the estate’s assets
The executor takes charge of managing the estate’s assets and distributing them as per the will’s instructions

When disputes arise, probate courts will open a dialogue with the parties involved to understand the causes of disputes, and come to a resolution. In some cases, the courts may use a mediation process to resolve disputes.

Executor's responsibilities in probate proceedings

The executor (also called a personal representative) plays a critical role in probate. They are responsible for many parts of the process.

Overseeing legal claims: Managing any claims filed against the estate
Settling debts: Paying off outstanding obligations owed by the deceased
Managing assets: Taking inventory and protecting estate property
Paying taxes: Filing final tax returns and paying any taxes due
Distributing assets: Transferring remaining property to beneficiaries in accordance with the will

If debts exceed assets, the estate may be deemed insolvent and probate may not proceed. Once the executor inventories assets, settles debts, and obtains court approval, they distribute the remaining estate to beneficiaries.

When probate becomes necessary

Probate typically becomes necessary when:

The deceased had no will
The estate includes complex assets or significant property
The will is contested by potential heirs
Real estate is titled solely in the deceased's name

However, the necessity of probate isn’'t solely determined by the presence or absence of a will. Other factors, such as the size of the estate at the time of death, the laws of the state, and the availability of an executor also influence whether probate is required.

A man sits at his kitchen table and talks to a probate attorney on the phone. A well-drafted will and detailed estate planning can help a family avoid probate or lessen the steps involved in the process.

Not all wills require probate: Understanding exceptions

Many people believe that all wills must go through probate, but this is not the case. Some estates can sidestep probate depending on factors like state laws, the size of the decedent's estate, and the extent of the decedent's estate planning. A well-drafted will and detailed estate planning can help a family avoid probate or lessen the steps involved in the process.

Estate planning tools to avoid probate

Several estate planning tools can help you avoid probate entirely:

Joint ownership: Property held in joint tenancy automatically transfers to the surviving owner upon death, bypassing probate completely
Beneficiary designations: Naming beneficiaries on insurance policies, retirement accounts, and bank accounts allows these assets to pass directly to recipients without court involvement
Living trusts: Assets transferred into a living trust during your lifetime pass to beneficiaries according to trust terms, avoiding the probate process

Not sure where to start your estate plan?

We’ll help guide you through your estate plan—whether you need a will or  trust.

Find your plan

Small estates and simplified probate processes

Small estates often don’t require the full probate process. They typically encompass filing a petition with the court. The value limit for what is considered a small estate varies by state. For instance, in Oklahoma, estates valued under $50,000 do not require the expedited probate process, whereas in California, the threshold is under $208,850.

Many states offer simplified probate procedures for smaller estates, but the accessibility of these procedures can vary by state. If an estate is small enough to skip the probate process, the estate’s assets may be claimed through other legal actions, such as an affidavit.

The impact of state probate laws

State laws significantly influence the probate process. Each state has unique regulations covering, but not limited to, the following.

Procedures:The specific steps required to open and complete probate
Timelines: Deadlines for filing documents and notifying creditors
Will validity: Requirements for a will to be legally enforceable
Asset distribution: Rules governing how property passes to heirs
Executor duties: Responsibilities and limitations of the personal representative

If the deceased owned property in multiple states, the probate laws of the state where theeach state where property is located govern that specific property. State laws also establish intestate succession rules, which determine how assets are distributed when someone dies without a valid will.

A woman leans against a wall in her office and looks out the window. Certain circumstances, such as state laws, the size of the estate, meticulous estate planning, and the type of assets involved, can influence whether a will has to go through probate.

How state laws influence probate requirements

State laws dictate the prerequisites for probate. These specific prerequisites differ by state. For instance, in Texas, the probate value threshold is set at $50,000. They also impact estate distribution during probate by establishing guidelines and regulations for the court-supervised process of distributing a decedent’s property.

Intestate succession is governed by state laws, and each state has its own probate will and specific laws that dictate the distribution of property when an individual passes away without a will. Differences in probate requirements stem from various factors, including:

Whether a state adheres to common or community property law
The relationship of the deceased to their surviving family members
The presence of a surviving spouse or children
The value of the estate

It's important to consult the laws of your specific state to understand how intestate succession would apply in your situation.

Intestate succession and probate court

Intestate succession refers to the order of priority in which an individual’s heirs will receive their property, as established by the intestacy laws of the intestate estates of the respective state. The probate court evaluates the assets that need to be distributed, and the intestacy laws govern how the assets are allocated among legal heirs.

Intestate succession laws may differ from state to state; however, in general, if an individual has both a spouse and children, the spouse is entitled to inherit the initial $50,000 of the property subject to intestacy regulations, as well as half of the remaining property. In the absence of a spouse or children, the property is passed on to the closest surviving relatives of the deceased.

A man shakes hands with a estate planning professional seated across a desk from him as his partner, seated next to him looks on and smiles. They have just completed their paperwork for their wills.

Probate alternatives for different asset types

Different types of assets might have different probate requirements or alternatives. Typical categories of assets that commonly bypass probate include:

Life insurance policies
IRAs
401(k)
Pensions
Bank accounts with beneficiaries

Non-probate assets are not subject to probate court and can be transferred directly and automatically to their beneficiaries without the need for a probate court process or intervention.

Certain categories of jointly-held property are subject to probate proceedings, whereas others may be transferred to the surviving partner or co-owner without the need for probate. However, if the last co-owner passes away, the jointly-owned asset may be subject to probate unless alternative measures, such as a trust, have been established.

Probate proceedings can include a range of assets, such as real estate, artwork, vehicles, bank accounts, personal property, and other investments. These remaining assets will be dealt with according to the probate laws and the legal process involved in the state's probate laws and court proceeding matters.

Assets that typically bypass probate

Assets with designated beneficiaries that commonly bypass probate encompass:

Insurance policies
Retirement accounts like IRAs
Bank accounts with payable-on-death designations
Transfer-on-death securities

These assets can be directly transferred to their specified beneficiaries without the necessity for probate proceedings.

In certain forms of joint ownership, such as tenancy by the entirety or joint tenancy with the right of survivorship, when one co-owner passes away, the asset automatically transfers to the surviving co-owners, bypassing probate.

A living trust is another tool that enables an individual to transfer their assets into a trust while alive and designate a trustee to oversee the assets in accordance with the individual’s directives following their passing.

Handling non-probate assets

Non-probate assets, such as life insurance policies and retirement accounts, can be distributed without probate. Upon the policy holder’s death, beneficiaries become eligible to receive the life insurance proceeds. To initiate the claim process, the insurance company must be notified and presented with a copy of the death certificate.

Beneficiaries of retirement accounts are required to comply with the mandated minimum distribution regulations. These distributions, resulting from the demise of the account holder, are expected to be completed within a period of 10 years following the original owner’s passing.

Probate is the legal procedure that deals with the assets and debts left behind. A woman sits at a desk and learns about the process of probate courts.

Navigating probate with a probate attorney

A probate attorney can greatly simplify the probate process. Their duties involve:

Managing the estate administration process after an individual’s death
Drafting required legal documents for the probate court
Guiding the executor or beneficiaries throughout the probate proceedings
Identifying the deceased individual’s assets.

A probate attorney can also contribute to reducing expenses in the probate process by providing assistance with responsible and estate tax planning and devising an appropriate estate plan to lower the expenses associated with probate or potentially circumvent it altogether.

The benefits of legal representation

Legal representation during probate proceedings provides numerous advantages.

Faster estate access: An attorney can expedite court filings and approvals
Conflict prevention: Professional guidance helps reduce disputes among family members
Legal protection: Proper handling safeguards the estate from creditor claims and challenges
Error prevention: Experienced counsel ensures documents are filed correctly, avoiding will rejection

Probate attorneys offer key guidance and legal expertise, including:

Validation of wills
Appointment of executors
Consideration of the deceased’s wishes
Competent handling of estate asset collection and liquidation
Dealing with estates and trusts with multiple assets
Navigating probate litigation for inheritance rights for children born outside marriage
Managing situations involving will contests, estate, and trust administration, as well as guardianships and conservatorships

Get guidance from an estate  planning attorney

Premium plans include attorney guidance, annual reviews, and more—so you can create one with confidence.

Get attorney help

Reducing probate costs and time

Effective estate planning can contribute to reducing probate costs by either avoiding probate or minimizing the necessity for probate. This can be achieved through strategies such as establishing a revocable living trust, assigning beneficiaries for assets, and transferring assets as gifts during one’s lifetime, thereby circumventing the probate process and its related expenses.

Probate attorneys can put in place measures to speed up the probate process by:

Gaining a thorough understanding of the process
Collecting detailed information about the estate in advance
Engaging a probate attorney early in the process
Consulting with an attorney about the case
Swiftly filing the probate petition
Streamlining the process through effective legal strategies

A woman, her young daughter, and the woman's mother sit on a couch together and look at a smartphone.

Frequently asked questions

How do you get around probate?

To avoid probate, you can consider options such as establishing a revocable living trust, gifting assets to loved ones while alive, or keeping your estate small. These methods can help bypass the probate process and ensure a smoother transfer of assets.

Which of the following items will pass through probate?

Assets titled in the decedent's sole name, assets owned but not jointly owned, not payable-on-death, and without beneficiary designations or left out of a living trust, are subject to probate. This can include bank or investment accounts, as well as stocks and bonds.

What is a child entitled to when a parent dies without a will?

When a parent dies without a will, children typically inherit after the surviving spouse according to state intestate succession laws. The exact share depends on your state's specific rules and whether other heirs exist.

What is the purpose of probate?

Probate serves as the formal legal process that validates a will and assigns an executor to manage the estate and distribute assets to beneficiaries. This recognition helps ensure that the deceased's wishes are carried out appropriately without leaving room for confusion or disputes.

What is probate, and who initiates it?

Probate is the formal legal process of dealing with the estate of a deceased person, and it is initiated by the executor named in the will or an administrator if no will exists.

Start your will todayStart Now

This article is for informational purposes. This content is not legal advice, it is the expression of the author and has not been evaluated by LegalZoom for accuracy or changes in the law.

I set up my Trust

I set up my Trust, Will, Health Directive, and Power of Attorney all at the same time with their estate plan. Incredibly easy. Of course I had to dig out all the info, but the input was simple and straightforward, and the free consults were priceless. Had I used an attorney alone, it would easily have cost me 3k+. Thanks Legal Zoom!

Michael D. McClish

70 days ago

Legal Zoom is affordable legal guidance.

Legal Zoom has been a lesson in estate planning, living trusts, and wills. I'm glad for the service, it made taking on an essential procedure less daunting than imagined. Along with the help I received from my dear sister, and the legal advice provided by one of your attorneys, we were able to complete my living trust, will, and end of life instructions will little stress. I'm glad I took my friend's advice to look you up. All in all, yours is the choice for those of us on a budget.

John Zane

104 days ago

User-Friendly Will & Estate Plan Process

The process to create a personal Will & Estate Plan, including a power of attorney and advanced medical directive was very user friendly and fast. The signing directions and explanatory documentation was also very helpful. The cost was reasonable and the on-line assistance chat feature allowed for quick resolution of a special request.

COH

133 days ago

First pass at Estate Plan, prior to receiving Documents

Preparation of documents for an estate plan was quick and easy. Meeting with the attorney went well. He had reviewed my very straight forward documents and found no problems.

Donald Heft

164 days ago

LegalZoom.com…a company you can trust

It’s just a great company to deal with. I am so glad I chose them to help me with my living will/estate plan!

Joseph Austin

181 days ago

Legal Zoom is very easy estate planning.

This was very easy to do, and Beth was very patient and so helpful with the process. I appreciate the time she took to make sure I had everything covered. It is very reassuring to know I have my final wishes on paper.

Glennis Hogan

194 days ago

legal zoom is the way to go

The representative was very knowledgeable about how long it takes to transfer a deed from one person to the next he explained everything and he was very pleasant when speaking to him

Ross

194 days ago

I spoke to the representative today about a Trust...

I spoke to the representative today regarding a question about an existing Living Trust. She was very helpful - told me exactly what I needed to know and how to accomplish it. As a representative in the Financial field I guide clients all the time on where to get documents done right - and its always LegalZoom - easy and effecient!

Gareth

203 days ago

We could not be more Pleased with the…

We could not be more Pleased with the help and service we had during the up dating of our Living Will and Advanced Directive

Richard Poulton

206 days ago

Legal Assistance for the rest of us

Legal Zoom has made it easy and affordable for us to create an LLC, a Will, and a Trust for our families.

K Chapman

209 days ago

LegalZoom .com has exceptional, real, staff to help. I met one!

I purchased multiple accounts to update both our Living Wills and Estate Plans. After utilizing LegalZoom.com’s user-friendly and intuitive platform for these legal documents, I found it necessary to call for clarification on some information within our account. I spoke with Sandra Balderas, who expertly addressed the mistakes I had inadvertently made. Her professionalism and friendliness greatly enhanced the experience. I realized that LegalZoom is not only a straightforward website to navigate for such complex matters, but it also boasts exceptional employees. Thank you, LegalZoom.com, and especially Sandra Balderas, for guiding me through the process. I’m thrilled to have discovered LegalZoom.com.

Max -Phoenix, Arizona

Rated4.6out of 5 based on27,013+ reviewson

Showing our favorite reviews